SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Present:
Mr. Justice Umar Ata Bandial
Mr. Justice Sajjad Ali Shah
Mr. Justice Syed Mansoor Ali Shah

CPLAs No.1862-L & 1863-L of 2021.

(Against the strictures passed by the Lahore High Court,
in its judgment dated 22.6.2021 delivered in FAO No.28948/2019)

Hasnain Raza (in CPLA No.1862)

Nazia Ali (in CPLA No.1863)
...…. Petitioner(s)
Versus
Lahore High Court, Lahore & others (in both cases)
…….Respondent(s)

For the petitioner(s): Mr. Shahid Shaukat Ch. ASC.

a/w petitioner, Hasnain Raza

Respondent(s): N.R.

Date of hearing: 09.11.2021

JUDGMENT

Syed Mansoor Ali Shah, J. “Every judge of the courts

of this land - from the highest to the lowest - should be protected to
the same degree, and liable to the same degree. If the reason
underlying this immunity is to ensure that they may be free in
thought and independent in judgment, it applies to every judge,
whatever his rank.” 1

2. Two judges of the District Judiciary of Punjab have

approached this Court for redressal of their grievance against the
stricture and direction passed against them by the Lahore High
Court in para 23 of its judgment dated 22.06.2021 while deciding
appeals against their judicial orders. They have prayed that the said
stricture and direction, having been passed against them in
derogation of the principles enunciated by this Court in Nusrat
Yasmin v. Registrar, PHC (PLD 2019 SC 719) and Aijaz Ahmed v.

1
Lord Denning, The Due Process of Law, p. 65 (1993) quoting from Sirros v. Moore 1974 3 All ER
776.
C.P No.1862-L/2021, etc 2

State (PLD 2021 SC 752), may be expunged. The impugned stricture

and direction are as follows:

23. Before parting with this order, it is observed that the

conduct of M/s Hasnain Raza and Nazia Ali, the then Civil
Judges, Sheikhupura, while holding proceedings in the suit
for specific performance as well as application under section
12(2) CPC, filed by the first vendee, prima facie, seems to be
dubious. In this backdrop, let the Office to put the matter
before the Hon’ble Chief Justice for initiation of regular
inquiry against the said Judicial Officers.

The facts of the appeals, relating to the dispute between the parties
thereto, are not relevant for deciding the grievance agitated before
us in the present petitions; they are, therefore, not being stated
here.

3. We have considered the submissions of the petitioners

and read the cases cited by them. The question involved in the
present case is: whether a High Court, or any other appellate court,
can record in its judgment a stricture against the judge of the lower
court whose judgment or order is impugned before it, relating to his
or her efficiency or conduct. This question has been considered in
depth and answered authoritatively, in the light of relevant
provisions of the Constitution and law, by a three member Bench of
this Court in the Nusrat Yasmin case. The decision made in the
Nusrat Yasmin case on the said question of law was later-on
endorsed and followed by another Bench of this Court in the Aijaz
Ahmed case, relied upon by the petitioners. We, therefore, think it
unnecessary to re-consider the same question again, especially
when we find ourselves in agreement with what was decided in the
Nusrat Yasmin case. What we consider appropriate to do is to
recapitulate the principles enunciated therein for clear
understanding of, and strict compliance by, all the appellate courts
including the High Courts:

i. An appellate court should not pass strictures in its

judgment against the judge of the lower court whose
judgment or order is impugned before it, relating to
his efficiency or conduct;

ii. An appellate court should not summon in court the

judge of the lower court whose judgment or order is
impugned before it, to explain why and how he or
she has made that judgment or order;
C.P No.1862-L/2021, etc 3

iii. An appellate court, if notices such procedural errors

or irregularities in the proceedings conducted by the
lower court which, it thinks, should not be repeated
in other cases, may bring the same to the notice of
the judge concerned through a confidential note
separate from its judgment;

iv. An appellate court, if is of the considered but

tentative view supported by reasonable grounds that
the judge of the lower court has exhibited grave
inefficiency or has committed serious misconduct in
discharge of his judicial duty that warrants
disciplinary action, may inform the competent
authority or the officer appointed by the competent
authority to deal with such complaints, through a
confidential report. The authority or the officer
concerned is to deal with such confidential report
and proceed with it further as per the relevant
service laws, rules and instructions, notwithstanding
the view of the appellate court, in the same manner
as it or he deals with other such complaints.

Public reprimand of a judge of the lower court regarding his judicial

conduct by an appellate court while sitting in judgment over his or
her judicial decision, either by recording a stricture or a censorious
remark in its appellate judgment or by summoning the judge and
reproaching him orally in open court, does not behove the judiciary
of a constitutional democracy which boasts of the independence of
judiciary as its salient pillar. Any such public condemnation of a
judge lowers the public trust in the judicial institution, besides the
harmful effect it has on the morale and confidence of the judge
concerned as well as of his colleagues.

4. The District Judiciary is the backbone of our judicial

system, and the judges of the District Judiciary perform the onerous
task of dispensing justice at the frontline by dealing with a large
number of cases in a difficult and demanding environment. The
judges of the higher courts must appreciate the stressful and
challenging conditions in which these judges perform. Our judicial
system acknowledges the fallibility of judges, and hence provides for
appeals and revisions. Higher courts everyday come across orders of
the lower courts which are not justified either in law or in fact and
modify or set them aside; that is the function of an appellate court.
It is often said that a judge who has not committed an error is yet to
be born. This applies to all judges, no matter how high or low in
rank they maybe. The intemperate or extravagant criticism on the
C.P No.1862-L/2021, etc 4

ability of a person having a contrary view is often founded on one’s

sense of his own infallibility. This must be avoided, and the judicial
approach should always be based on the consciousness that
everyone may make a mistake. While examining the decision of a
court below, the higher court is to assess the reasoning and the
legality of the decision challenged before it and not the ability or
conduct of the author judge. The latter is the function of the
disciplinary authority. The higher court, if so decides, can refer the
matter to the disciplinary authority, in the manner elucidated in
Nurat Yasmin case, only on the administrative side.

5. The Nusrat Yasmin case enunciated important

principles of law for dealing with the matters like the present one,
and it was therefore circulated amongst all the Hon’ble Judges of all
the High Courts of the country for their information. And those
principles were reiterated by this Court in the Aijaz Ahmed case.
Needless to mention that a decision of this Court, to the extent it
decides a question of law or enunciates a principle of law, is binding
on all other courts of the country including the High Courts, under
the mandate of Article 189 of the Constitution of the Islamic
Republic of Pakistan 1973 (“Constitution”). Similar is the binding
effect of such a decision of a High Court, under Article 201 of the
Constitution, on all courts subordinate to that High Court. To
appreciate the scope and extent of the binding force and authority of
judicial precedents, they may be classified into two categories:
vertical and horizontal precedents.2 Vertical precedents mean the
decisions of a higher court, and horizontal precedents mean the
decisions of the same or coordinate court. All courts are absolutely
bound by the vertical precedents of a higher court. This binding tie
is often said to be a matter of “owing obedience”.3 Articles 189 and
201 of our Constitution also reinforces the binding effect of the
vertical precedents. Judges are therefore obliged to follow a vertical
precedent even when they disagree with it; this ensures a degree of
national uniformity in judicial decisions. The judges have little room
to decide how much weight or value is to be given by them to that

2
Not until the early 1980s did scholarly commentators first use the antonyms horizontal and vertical
in reference to precedents. Before that time, the phrase stare decisis was often ambiguous. It could
refer to a court’s standing by its own earlier decisions or to a court’s following or distinguishing the
precedent of a higher court. The vertical/horizontal terminology promotes clearer thinking by
avoiding the ambiguity. See Garner et al., The Law of Judicial Precedent, p. 27 (2016).
3
Gately v. Massachusetts, 2 F.3d 1221 (1st Cir. 1993).
C.P No.1862-L/2021, etc 5

precedent. Unless we wish anarchy to prevail within the judicial

system, a precedent of the apex Court of the country must be
followed by all other courts of the country who owe unflinching
fealty to its decisions under the Constitution.4 Ignoring or refusing
to follow the controlling precedent of this Court amounts to judicial
effrontery, offends the constitutional mandate, and weakens the
public confidence in the decisions of the apex Court of the country.
As Jackson J. said, humbly but firmly, of the Supreme Court: “we
are not final because we are infallible, but we are infallible only
because we are final.”5 A higher court generally adheres to
horizontal precedents - its own earlier decisions - but it may depart
from or overrule any of its own decisions by sitting as a larger bench
if there is a compelling justification to do so.6

6. For the above reasons, these petitions are converted

into appeals and allowed: the impugned stricture and direction are
expunged. The learned Judge of the High Court may, if deems it
proper and necessary, act in accordance with the principles settled
in the cited precedents, and recapitulated above. Office shall
dispatch a copy of this judgment to the Registrar, Lahore High
Court to be placed before the learned Judge concerned.

Judge

Judge

Islamabad,
09th November, 2021.
Approved for reporting Judge
Sadaqat

4
Hutto v. Davis, 454 U.S. 370 (1982).
5
Brown v. Allen, 344 U.S. 443 (1953)
6
Garner et al., The Law of Judicial Precedent, p. 35 (2016).