On the same point august Supreme Court in Ameer Zeb Case (Supra)
applied the principles laid down in Ardeshir Cowasijee Case (supra)
to benches of equal strength of august Supreme Court and held:-
4. It appears that a contrary view was taken by two other Benches
of equal number of Judges in the cases of Muhammad Hashim and
Amanat Ali (supra). In such a situation. apparently the rule laid
down by the case of Multiline Associates v. Ardeshir Cowasjee PLD
1995 SC 423 was required to have been followed which is that if a
Bench of equal Judges does not agree with the earlier Bench of
equal Judges, then the matter should be referred to a larger Bench.
It appears that earlier decisions of this Court in the cases of Nadir
Khan and Ali Muhammad (supra) were not brought to the notice of
the Benches in the cases of Muhammad Hashim and Amanat Ali
(supra), therefore, the principle laid down in the said cases was
never discussed. In such a situation this Court in the case of
Province of the Punjab v. S. Muhammad Zafar Bukhari PLD 1997
SC 351 observed as under:--- "Halsbury's Laws of England. Fourth Edition, volume 26 in
paras 577-578, has commented on the "judgment per incuriam"
as under:
"A decision is given per incuriam when the Court has acted in
ignorance of previous decision of its own or of a Court of
coordinate 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 House of a Lords' decision, in which case it must
follow that decision or when the decision is given in ignorance of
the terms of statute or rule has statutory force."
[Emphasis added by high court Judge]
Used in Judgement of
Lahore High court
WP- Criminal Proceeding
9027-17
2018 LHC 1465
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