JURISPRUDENCE ASSIGNMENT (KSLU INTERNALS)

QUESTION OF LAW, QUESTION OF FACT, AND QUESTION OF DISCRETION

INTRODUCTION

In the realm of legal proceedings, a nuanced understanding of the intricacies surrounding

questions of law, questions of fact, and questions of discretion is indispensable. These distinct
categories form the bedrock of legal analysis and decision-making, playing pivotal roles in a
myriad of contexts such as trials, appeals, and administrative hearings. Each category delineates
a specific facet of the legal landscape, guiding the course of litigation and shaping the nature of
legal arguments presented before the adjudicating authorities. Whether it be the interpretation
of legal principles, the determination of factual events, or the exercise of discretionary powers,
these distinctions not only demarcate the responsibilities of decision-makers but also establish
the standards by which their decisions are evaluated. This intricate interplay between law, fact,
and discretion underscores the fundamental principles that govern the administration of justice
and ensure the equitable resolution of legal disputes.

QUESTION OF LAW

INTORDUCTION

DEFINITION: A QUESTION OF LAW INVOLVES THE INTERPRETATION AND APPLICATION OF LEGAL PRINCIPLES, STATUTES,
REGULATIONS, OR PRECEDENTS TO A SPECIFIC SET OF FACTS.

DECISION-MAKER: TYPICALLY, JUDGES ARE RESPONSIBLE FOR DETERMINING QUESTIONS OF LAW.

STANDARD OF REVIEW: APPELLATE COURTS OFTEN REVIEW QUESTIONS OF LAW DE NOVO, MEANING THEY RECONSIDER THE
LEGAL ISSUE WITHOUT GIVING DEFERENCE TO THE LOWER COURT'S D ECISION.

ALL QUESTIONS:-

I. WHICH HAVE ALREADY BEEN ANSWERED BY THE LAW;

II. OR BY THE COURT AND BECAME JUDICIAL PRECEDENT FOR SIMILAR CASES
III. OR IS TO BE ANSWERED BY THE COURT WITHOUT RECORDING THE EVIDENCE IS QUESTION OF LAW.

ACCORDING TO SALMOND THE QUESTION OF LAW IS USED IN THREE DISTINCT, THOUGH RELATED, SENSES:-

I. QUESTION WHICH THE LAW ITSELF HAS AUTHORITATIVELY ANSWERED.

II. QUESTION AS TO WHAT THE LAW IS ON CERTAIN POINT WHICH IS ANSWERED BY JUDGE.
III. IN GENERAL SENSE QUESTION OF LAW FOR THE JUDGE BUT QUESTION OF FACT IS FOR THE JURY.

I. QUESTION AUTHORITATIVELY ANSWERED BY LAW:

1. QUESTION WHICH COURT IS BOUND TO ANSWER IN ACCORDANCE WITH A RULE OF LAW;

2. A QUESTION WHICH THE LAW ITSELF HAS AUTHORITATIVELY ANSWERED;

3. TO THE EXCLUSION OF THE RIGHT OF THE COURT TO ANSWER THE QUESTION AS IT THINKS FIT IN ACCORDANCE WITH
WHAT IS CONSIDERED TO BE THE TRUTH AND JUSTICE OF THE MATTER.
ILLUSTRATION OF QUESTION OF LAW:

WHETHER THE HOLDER OF A BILL OF EXCHANGE HAS BEEN GUILTY OF UNREASONABLE DELAY IN GIVING NOTICE OF
DISHONOR IS A QUESTION OF LAW TO BE DETERMINED IN ACCORDANCE WITH CERTAIN FIXED PRINCIPLES LAID DOWN IN THE
BILLS OF EXCHANGE ACT.

THE QUESTION WHETHER A CHILD ACCUSED OF CRIME HAS SUFFICIENT MENTAL CAPACITY TO BE CRIMINALLY RESPONSIBLE
FOR HIS ACTS IS ONE OF FACT, IF THE ACCUSED IS OVER THE AGE OF TEN YEARS, BUT ONE OF LAW IF UNDER 10 YEARS OF
AGE.

II. QUESTION ARISES OUT OF UNCERTAINTY OF LAW:

IN THIS SECOND SENSE, A QUESTION OF LAW IS A QUESTION AS TO WHAT LAW IS.

THUS, AN APPEAL ON A QUESTION OF LAW MEANS AN APPEAL IN WHICH THE QUESTION FOR ARGUMENT AND
DETERMINATION IS WHAT THE TRUE RULE OF LAW IS ON A CERTAIN MATTER.

QUESTION OF LAW IN THIS SENSE ARISES, NOT OF THE EXISTENCE OF LAW, BUT OUT OF ITS UNCERTAINTY.

IF THE WHOLE LAW COULD BE DEFINITELY ASCERTAINED, THERE WOULD BE NO QUESTION OF LAW IN THIS SENSE; BUT
ALL QUESTIONS TO BE ANSWERED IN ACCORDANCE WITH THAT LAW WOULD STILL BE QUESTION OF LAW IN THE FORMER
SENSE.

WHEN A QUESTION FIRST ARISES IN A COURT OF JUSTICE AS TO THE MEANING OF AN AMBIGUOUS STATUTORY PROVISION,
THE QUESTION IS ONE OF LAW IN THIS SECOND SENSE; IT IS A QUESTION AS TO WHAT THE LAW IS.

THE BUSINESS OF THE COURT IS TO DETERMINE WHAT, IN ITS OWN JUDGMENT AND IN FACT, IS THE TRUE MEANING OF THE
WORDS USED BY THE LEGISLATURE.

BUT WHEN THIS QUESTION HAS ONCE BEEN JUDICIALLY DETERMINED, THE AUTHORITATIVE ANSWER TO IT BECOMES A
JUDICIAL PRECEDENT WHICH IS LAW FOR ALL OTHER CASES IN WHICH THE SAME STATUTORY PROVISION COME IN QUESTION.

ILLUSTRATION

IN JUDICIAL PRECEDENT THE WORD “SUFFICIENT CAUSE” HAS BEEN EXPLAINED THAT “PURSUING REMEDY IN A WRONG
FORUM ON MISTAKEN ADVICE ON COUNSEL IS NOT SUFFICIENT BECAUSE WITHIN THE MEANING OF S. 5 OF LIMITATION
ACT, 1908. THEREFORE, IT IS NOW A JUDICIAL PRECEDENT THAT MISTAKEN ADVICE IS NOT “SUFFICIENT CAUSE” WITHIN THE
MEANING OF SEC. 5 OF LIMITATION ACT, 1908

III. QUESTION OF LAW DETERMIEND BY JUDGE:

IN THE THIRD SENSE A QUESTIONS OF LAW IS FOR THE JUDGE, BUT THE QUESTIONS OF FACT ARE FOR THE JURY. HOWEVER,
IN PAKISTAN INSTEAD OF JURY LOCAL COMMISSION IS ISSUED BY THE COURT, UNDER SECTION 75 OF THE CODE OF CIVIL
PROCEDURE ACT, 1908, IF NECESSARY I FOR THE DETERMINATION OF THE QUESTION OF FACT. IN PAKISTAN SUPERIOR
COURTS AMICUSCURIAE IS APPOINTED, FOR GETTING HELP FOR THE DETERMINATION OF QUESTION OF LAW AND FACT. IN
SHORT, A QUESTION OF LAW IS ONE WHICH IS DETERMINED BY THE COURT WITHOUT RECORDING ANY EVIDENCE.

QUESTION OF FACT

INTRODUCTION:
DEFINITION: A QUESTION OF FACT CONCERNS THE ACTUAL EVENTS, OCCURRENCES, OR CIRCUMSTANCES IN A CASE. IT
INVOLVES THE DETERMINATION OF WHAT REALLY HAPPENED.

DECISION-MAKER: IN TRIALS, JURIES ARE OFTEN RESPONSIBLE FOR DECIDING QUESTIONS OF FACT. JUDGES MAY ALSO
DECIDE QUESTIONS OF FACT IN BENCH TRIALS (TRIALS WITHOUT A JURY).

STANDARD OF REVIEW: APPELLATE COURTS GENERALLY GIVE DEFERENCE TO THE TRIAL COURT'S FINDINGS ON QUESTIONS OF
FACT AND WILL OVERTURN THEM ONLY IF THEY ARE CLEARLY ERRONEOUS.

SALMOND DESCRIBED QUESTION OF FACT IN TWO SENSES, I.E.;

(A) IN GENERAL SENSE

(B) IN NARROWER SENSE

(A) IN GENERAL SENSE

QUESTION OF FACT INCLUDES ALL QUESTIONS;

ANY QUESTION WHICH IS NOT PREDETERMINED BY A RULE OF LAW;

OR ANY QUESTION EXCEPT A QUESTION AS TO WHAT THE LAW IS;

OR ANY QUESTION THAT IS TO BE ANSWERED BY THE JURY.

(B) IN NARROWER SENSE

THE EXPRESSION QUESTION OF FACT DOES NOT INCLUDE ALL QUESTIONS THAT ARE NOT QUESTIONS OF LAW, BUT ONLY SOME
OF THEM. IN THIS SENSE A QUESTION OF FACT IS OPPOSED TO A QUESTION OF JUDICIAL DISCRETION.

DIFFERENCE BETWEEN JUDICIAL DISCRETION AND QUESTION OF FACT:-

JUDICIAL DISCRETION INCLUDES ALL QUESTION AS TO WHAT IS RIGHT, JUST, EQUITABLE, OR REASONABLE SO FAR AS NOT
PREDETERMINED BY AUTHORITATIVE RULES OF LAW BUT COMMITTED TO THE LIBERUM ARBITRIUM OF THE COURTS.

A QUESTION OF JUDICIAL DISCRETION PERTAINS TO THE SPHERE OF RIGHT, AS OPPOSED TO THAT OF FACT IN ITS STRICTER
SENSE.

IT IS A QUESTION AS TO WHAT OUGHT TO BE, AS OPPOSED TO A QUESTION OF WHAT IS.

MATTERS OF FACT ARE CAPABLE OF PROOF, AND ARE THE SUBJECT OF EVIDENCE ADDUCED FOR THAT PURPOSE.

MATTERS OF RIGHT AND JUDICIAL DISCRETION ARE NOT THE SUBJECT OF EVIDENCE AND DEMONSTRATION, BUT OF
ARGUMENT, AND ARE SUBMITTED TO THE REASON AND CONSCIENCE OF THE COURT.

IN DETERMINING QUESTIONS OF FACT THE COURT IS SEEKING TO ASCERTAIN THE TRUTH OF THE MATTER; IN DETERMINING
QUESTION OF JUDICIAL DISCRETION IT SEEKS TO DISCOVER THE RIGHT OR JUSTICE OF THE MATTER

EXAMPLE

THE COMPANIES ACT EMPOWERS THE COURT TO MAKE AN ORDER FOR THE WINDING-UP OF A COMPANY IF, INTER ALIA, THE
COMPANY IS UNABLE TO PAY ITS DEBTS OR THE COURTS OF OPINION THAT IT IS JUST AND EQUITABLE THAT THE COMPANY
SHOULD BE WOUND UP. THE FIRST OF THESE QUESTIONS IS ONE OF PURE FACT, WHEREAS THE SECOND IS A QUESTION OF
JUDICIAL DISCRETION.
QUESTION OF FACT AND MATTER OF OPINION:

A QUESTION OF FACT IS ONE CAPABLE OF BEING ANSWERED BY WAY OF DEMONSTRATION A QUESTION OF OPINION IS ONE
THAT CANNOT BE SO ANSWERED. THE ANSWER TO IT IS A MATTER OF SPECULATION WHICH CANNOT BE PROVED BY ANY
AVAILABLE EVIDENCE TO BE RIGHT OR WRONG.

EXAMPLE:

THE PAST HISTORY OF A COMPANY’S BUSINESS IS A MATTER OF FACT; BUT ITS PROSPECTS OF SUCCESSFUL BUSINESS IN THE
FUTURE IS A MATTER OF OPINION. MANY OF THE QUESTION WHICH COURTS DECIDE “ON THE FACTS‟ AND WHICH ARE NOT
GOVERNED BY FIXED LEGAL RULES ARE QUESTION OF OPINION IN THIS SECOND SENSE. WHETHER THE DEFENDANT DROVE
WITHOUT DUE CARE, WHETHER ACCUSED REACTED TO THE DECEASED’S PROVOCATION AS WOULD A REASONABLE MAN,
WHETHER A FLAT HAS BEEN SO SUBSTANTIALLY ALTERED AS TO SUFFER A CHANGE OF IDENTITY ALL THESE ARE STRICTLY
NEITHER QUESTIONS OF LAW OR OF FACT; THEY ARE MATTERS FOR EVALUATION.

PRIMARY AND SECONDARY FACTS:

A DISTINCTION IS ALSO DRAWN BETWEEN PRIMARY AND SECONDARY FACTS;

PRIMARY FACTS ARE PROVED BY ORAL, DOCUMENTARY AND OTHER EVIDENCE; SECONDARY FACTS CAN BE INFERRED FROM
PRIMARY FACTS.

THE IMPORTANCE OF THE DISTINCTION IS THAT AN APPELLATE TRIBUNAL CAN BE SAID TO BEIN AS GOOD A POSITION AS THE
TRIAL COURT WITH REGARD TO SECONDARY, THOUGH NOT PRIMARY, FACTS.

QUESTION OF DISCRETION

INTRODUCTION

Discretion is the power or right to make official decisions using reason and judgment to choose from
among acceptable alternatives. Judicial discretion is a very broad concept because of the different kind
of decisions made by judges within the same given circumstances. The exercise of discretionary power
conferred on a judge is omnipotent in judicial proceedings. Some degree of discretion is unavoidable
because legislature cannot foresee every eventuality which may come in judicial proceedings. The term
judicial discretion has nowhere been defined in the statues though it is exercised regularly by courts of
law. It is exercised when a judge is conferred a power under a statute that requires the judge to choose
between several different, but equally valid, courses of action.

DEFINITION: A QUESTION OF DISCRETION ARISES WHEN A DECISION-MAKER IS GRANTED THE AUTHORITY TO MAKE CHOICES
WITHIN A RANGE OF ACCEPTABLE OPTIONS. THIS OFTEN INVOLVES THE EXERCISE OF JUDGMENT OR WEIGHING OF VARIOUS
FACTORS.

DECISION-MAKER: JUDGES, ADMINISTRATIVE AGENCIES, AND OTHER OFFICIALS MAY HAVE DISCRETION IN MAKING CERTAIN
DECISIONS.

STANDARD OF REVIEW: APPELLATE COURTS TYPICALLY REVIEW DECISIONS BASED ON DISCRETION USING AN "ABUSE OF
DISCRETION" STANDARD, MEANING THEY WILL ONLY OVERTURN A DECISION IF IT IS SHOWN THAT THE DECISION-MAKER
ACTED ARBITRARILY OR UNREASONABLY.

THERE ARE ALSO MIXED QUESTIONS WHICH ARE PARTLY QUESTIONS OF FACT AND PARTLY OF LAW.
EXAMPLE: WHETHER A PARTNERSHIP EXISTS BETWEEN A AND B IS PARTLY ONE OF FACT (VIZ., WHAT AGREEMENT HAS
BEEN MADE BETWEEN THEM) AND PARTLY ONE OF LAW (VIZ., WHETHER SUCH AN AGREEMENT IS SUFFICIENT TO CONSTITUTE
THE LEGAL RELATION OF PARTNERSHIP).

CONCLUSION

THE DISTINCTIONS AMONG QUESTIONS OF LAW, QUESTIONS OF FACT, AND QUESTIONS OF DISCRETION FORM THE
CORNERSTONE OF LEGAL REASONING AND ADJUDICATION. AS OUR EXPLORATION REVEALS, A QUESTION OF LAW INVOLVES
THE AUTHORITATIVE INTERPRETATION AND APPLICATION OF LEGAL PRINCIPLES TO SPECIFIC FACTUAL SCENARIOS. TYPICALLY,
JUDGES WIELD THE RESPONSIBILITY FOR DETERMINING SUCH QUESTIONS, WITH APPELLATE COURTS EMPLOYING A DE NOVO
STANDARD TO REASSESS LEGAL ISSUES WITHOUT DEFERENCE TO LOWER COURT DECISIONS. QUESTIONS OF LAW MAY
ENCOMPASS THOSE DEFINITIVELY ANSWERED BY EXISTING LEGAL RULES OR THOSE ARISING FROM UNCERTAINTIES IN LEGAL
PROVISIONS.

MOVING ON TO QUESTIONS OF FACT, THESE PERTAIN TO THE ACTUAL OCCURRENCES AND CIRCUMSTANCES IN A CASE,
DEMANDING DETERMINATIONS BASED ON EVIDENTIARY SUPPORT. IN TRIAL SETTINGS, JURIES OFTEN BEAR THE RESPONSIBILITY
OF DECIDING QUESTIONS OF FACT, AND APPELLATE COURTS GENERALLY ACCORD DEFERENCE TO TRIAL COURT FINDINGS,
OVERTURNING THEM ONLY WHEN CLEARLY ERRONEOUS. THE MULTIFACETED NATURE OF QUESTIONS OF FACT IS
ENCAPSULATED IN THE BROADER AND NARROWER SENSES DESCRIBED BY LEGAL SCHOLAR SALMOND, WHICH HIGHLIGHT THEIR
INCLUSIVITY AND THE DISTINCTION BETWEEN MATTERS CAPABLE OF PROOF AND THOSE OF OPINION.

LASTLY, QUESTIONS OF DISCRETION INVOLVE THE EXERCISE OF JUDGMENT AND DECISION-MAKING WITHIN A PERMISSIBLE
RANGE OF CHOICES. JUDGES, ADMINISTRATIVE AGENCIES, AND OFFICIALS MAY WIELD DISCRETION IN CERTAIN CONTEXTS,
SUBJECT TO REVIEW BY APPELLATE COURTS FOR POTENTIAL ABUSE. THIS DISCRETIONARY AUTHORITY ALLOWS DECISION-
MAKERS TO WEIGH VARIOUS FACTORS AND CHOOSE FROM ACCEPTABLE ALTERNATIVES, CONTRIBUTING TO THE FLEXIBILITY
REQUIRED IN LEGAL PROCEEDINGS.

IN ESSENCE, THIS INTRICATE TRIAD OF LEGAL CONCEPTS UNDERSCORES THE DYNAMIC AND COMPLEX NATURE OF THE LEGAL
LANDSCAPE. THE SEAMLESS INTERPLAY BETWEEN LAW, FACT, AND DISCRETION ENSURES A COMPREHENSIVE AND EQUITABLE
APPROACH TO RESOLVING LEGAL DISPUTES. THE CLARITY AND UNDERSTANDING OF THESE DISTINCTIONS ARE PARAMOUNT
FOR LEGAL PRACTITIONERS, AS THEY NAVIGATE THE INTRICACIES OF THE JUSTICE SYSTEM, PRESENTING ARGUMENTS AND
EVIDENCE TAILORED TO THE SPECIFIC NATURE OF THE ISSUES AT HAND. AS THE LEGAL WORLD CONTINUES TO EVOLVE, THE
NUANCED COMPREHENSION OF THESE CATEGORIES REMAINS CRUCIAL FOR UPHOLDING THE PRINCIPLES THAT UNDERPIN THE
ADMINISTRATION OF JUSTICE.
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