MR. JUSTICE ABDUL HAMEED DOGAR, HCJ MR. JUSTICE FAQIR ...

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CONSTITUTION PETITION NO. 1 OF 2008 AND CMA NO. 994 TO 996 OF 2008 20 and be reconciled with subsequent decisions of this Court, some equally authoritative. In our view Sabhajit Tewary fulfils both conditions.” 14. We have carefully considered the contentions of Mr. Khaki, as also of the learned counsel for the petitioners and the view expressed by the learned Attorney General for Pakistan on the maintainability of the present petition in regard to the power and jurisdiction of this Court to revisit and overrule its earlier judgment. We may usefully make reference to the following cases: - Ataur Rahman v. State (PLD 1967 SC 23): The judgment points out the possibility of re-considering in a future proper case Court’s view on a point of law expressed in earlier case and decision in earlier case remaining binding on Courts till such re-consideration. Allah Ditta v. Muhammad Ali (PLD 1972 SC 59): The Supreme Court of Pakistan held that “----, the decision in the case of Sharaf and another v. Pir Bakhsh 1 and another has held the field for the last 78 years and has been followed without dissent by the Courts in Punjab. On the principle of ‘stare decisis’ also it is not desirable to change this view unless it is so unreasonable that it cannot be followed under any circumstances.” Terni S.P.A. v. PECO (1992 SCMR 2238): It was held that this Court could depart from a previous rule or interpretation if it felt that circumstances had changed and that not to do so would lead to injustice. The development of the law should not be permitted to be stifled. It should move with the time and articulate the changes coming in. Muhammad Hanif v. Sultan (1994 SCMR 279): This Court observed that the Supreme Court being at the apex had a constitutional duty to do complete justice, thus, it could not be inhibited by any restraint and had an abiding duty to attend to all aspects and to take an overall view of the case in dispensing justice. In re: To Revisit “The State v. Zubair” (2002 SCMR 171): This Court took suo motu action in the matter under Article 184(3) of the Constitution in view of the difficulties arising out of the strict implementation of the ratio in 1 83 Punjab Record 1893
CONSTITUTION PETITION NO. 1 OF 2008 AND CMA NO. 994 TO 996 OF 2008 21 Zubair’s case wherein it was, inter alia, observed by this Court that if a Judge of a High Court had heard a bail application of an accused person, all subsequent applications for bail of the same accused or in the same case, should be referred to the same Bench/Judge wherever he was sitting and in case it was absolutely impossible to place the second or subsequent bail application before the same Judge who had dealt with the earlier bail application of the same accused or in the same case, the Chief Justice of the concerned High Court may direct it to be fixed for disposal before any other Bench/Judge of that Court. In this case, while making certain clarifications/modifications in its earlier judgment in Zubair’s case, this Court was influenced by the following factors: - “---- the rule in Zubair (supra) is based on the salutary principles that justice must not only be done but also seen to be done. It also promotes the Constitutional ideals that no one should abuse the process of the Court (Article 204) and the independence of the judiciary must be fully secured (Article 2A). These ideals cannot, however, be fully promoted unless the rule in Zubair (supra) is made to accommodate the equally important Constitutional ideals of expeditious and inexpensive justice (Article 37(d) I which though a Principle of Policy can be judicially enforced as it will be read into the non-derogable Fundamental Rights guaranteeing the inviolability of the dignity of man (Article 14). Keeping bail applications pending for long periods of time by making a fetish of technicalities not only denies these Constitutional ideals but also impedes access to justice which is a Fundamental Right protected by Article 14.” 15. From the above survey of the case-law it is clear that the Supreme Court in an appropriate case may revisit its earlier decision, clarify, modify or even overrule the same if the circumstances of the case so warrant. 16. The learned counsel for the petitioners contended that the impugned educational qualification constituted infringement of fundamental right of the citizens, but it was taken very lightly in the PML (Q)’s case. He submitted that the Court in the said case
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MR. JUSTICE ABDUL HAMEED DOGAR, HCJ MR. JUSTICE FAQIR ...

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