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Petitioner: Justice Qazi Faez Isa and others VS Respondent: The President of Pakistan and others
Court Name: Supreme Court of Pakistan Judge(s):Sajjad Ali Shah, Qazi Muhammad Amin Ahmed, Manzoor Ahmad Malik,
Umar Ata Bandial, Munib Akhtar, Mazhar Alam Khan Miankhel Title: Justice Qazi Faez Isa and others vs The President of Pakistan and others Case No.:Civil Review Petition No 296 of 2020 a/w c. M. A. No 7084 of 2020 & Civil Review Petition No 297 of 2020 a/w c. M. A. No 7086 of 2020 & Civil Review Petition No. 298 of 2020 a/w c. M. A. No. 7085 of 2020 & Civil Review Petition No. 299 of 2020 a/w c. M. A. No. 7087 of 2020 & Civil Review Petition No 300 of 2020 a/w c. M. A. No 7169 of 2020 & Civil Review Petition No. 301 of 2020 a/w c. M. A. No. 7170 of 2020 & C.M.A No 4533 of 2020 in Crp No Nil of 2020 & Civil Review Petition No 308 of 2020 a/w Date of Judgment:2021-02-22 Reported As: 2021 PSC 378, KLR 2022 Supreme Court Cases 1 Result: Order accordingly Judgment ORDER We have before us a number of miscellaneous applications, filed under Order XXVI, Rule 8 of the Supreme Court Rules, 1980 read with other enabling provisions. These seek reconstitution of the Bench hearing several review petitions filed against the majority judgment in Justice Qazi Faez Isa Vs. President of Pakistan and others (Const. P 17/2019) and connected petitions. The said Constitutional petitions had been filed under Article 184(3) of the Constitution. These were heard by a ten member Bench of the Court and were disposed of by means of a short order dated 19.06.2020, which is reporte d as (Mr.) Justice Qazi Faez Isa and 14 others Vs. The President of Pakistan and others (PLD 2020 SC 346) ("Short Order "). Subsequently , five judgments giving reasons were released. Seven members of the Bench were party to the whole of the Short Order, in particular paras 3 to 11 thereof (which portion is the subject matter of the review petitions). They released a common judgment (authored by Justice Umar Ata Bandial) on 23.10.2020 ("majority judgment "). One of them, Justice Faisal Arab, added his concurring judgment. The remaining three learned members, who did not join in the aforementioned paras 3 to 11 of the Short Order , authored their separate minority judgments ("minority judgments "). Justice Yahya Afridi released his minority judgment at the same time as the majority on 23.10.2020, while Justice Maqbool Baqar and. Justice Mansoor Ali Shah released their respective minority judgments on 04.11.2020. The decision of the
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connected petitions under Article 184(3) is therefore reflected in the majority judgment concurred by seven learned members of the Bench and the three minority judgments rendered by three learned members of the Bench. Factual Context 2. The review petitions, disputing paras 3 to 11 of the Short Order subscribed to by seven members of the Bench, were initially posted on 28.10.2020 before a Bench comprising the seven learned Judges who had passed the majority judgment. However , the matter was adjourned on the request of the review petitioners for examining the detailed reasons given in the majority judgment. Shortly afterwards, on 04.11.2020 Justice Faisal Arab retired from his office, necessitating the reconstitution of the Bench to its strength of seven Judges for hearing the review petitions. At this stage, all of the review petitioners filed miscellaneous applications and/or corresponded with the Registrar of the Court seeking the inclusion of the three Judges in the review Bench who had delivered the minority judgements. As the constitution of Benches is the prerogative of the Hon'ble Chief Justice ("HCJ"), these pleas were placed before the HCJ who, vide order dated 11.11.2020, directed that the applications be placed for consideration and decision before a Bench comprising the six remaining Judges who had delivered the majority judgment. Thus, in total eight such applications are fixed before us for rendering our opinion to assist the HCJ in the formation of a review Bench in the matter . 3. In two CMAs, each filed by Justice Qazi Faez Isa ("the learned petitioner") and Mrs. Sarina Isa ("Mrs. Isa"), the prayer is that the review petitions be listed before a Bench which includes the three learned Judges who passed the minority judgments. In the remaining six CMAs (filed by the Bar Associations/Councils and PFUJ) the prayer is that the review petitions 'be heard by the same Bench as possible as may be that passed the judgment dated 19th June 2020.' Reference is also made to what is perceived as the 'established practice' of the Court, namely , that the Bench 'hearing the review [be] of at least the same number of judges as passed the judgment under review .' It may be added that before these CMAs were fixed for hearing, the learned petitioner filed additional grounds of review in light of the detailed reasons given by Justice Yahya Afridi in his minority judgment. Mrs. Isa also filed additional grounds of review in which she disputed all three minority judgments. Procedure for Review: Legal. Context 4. Before examining the pleas raised by the review petitioners, it would be useful to first consider the law vesting review jurisdiction in this Court and the procedure laid down to regulate its exercise: The Constitution of Islamic Republic of Pakistan, 1973 (" Constitution "): "188. Review of Judgments or Orders by the Supreme Court . The Supreme Court shall have power , subject to the provisions of any Act of [Majlis-e-Shoora (Parliament)] and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it. 191. Rules of Procedure. Subject to the Constitution and law, the supreme Court may make rules regulating the practice and procedure of the Court. The Supreme Court Rules, 1980 ("SCR") framed under Article 191 of the Constitution: ORDER XI CONSTITUTION OF BENCHES "Save as otherwise provided by law or by these Rules every cause, appeal or matter shall be heard and disposed of by a Bench consisting or not less than three Judges to be nominated by the Chief Justice:..." ORDER XXVI REVIEW 1. Subject to the law and the practice of the Court, the Court may review its judgment or order in a Civil proceeding on grounds similar to those mentioned in Order XLVII, rule I of the Code [of Civil Procedure, 1908] and in a criminal proceeding on the ground of an error apparent on the face of the record. 8. As far as practicable the application for review shall be posted before the same Bench that delivered the judgment or order sought to be reviewed." (emphasis supplied) 5. We shall deal with each of these provisions in turn although not necessarily in the sequence that they appear . To begin, Article 188 declares that the power of review has been vested in this Court by the Constitution itself.
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However , what is significant for our purposes is that the review jurisdiction has been conferred in respect of `any' judgment pronounced or any order made by the Court. But Article 188 does not explain what the term 'any' means thereby leaving it for this Court to ascer tain precisely which types of judgments are amenable to review . In this behalf, Article 188 provides us with an important guideline: the review jurisdiction of this Court is subject to or regulated by any Act of Parliament or any Rules made by the Supreme Court. At present, there is no such Act in the field but there are Rules, specifically the SCR, which have been framed by the Supreme Court in exercise of its power under Article 191. We shall now examine how these shed light on the meaning of the 'phrase 'any judgment pronounced, or any order made' used in Article 188. 6. At first glance, the provisions of Order XXVI of the SCR are the most pertinent to our inquiry . Indeed, during oral arguments on 08.12.2020 when this matter came up for consideration, Mr. Munir A. Malik, who represents the learned petitioner in his review petition, also relied on Order XXVI, Rule 8 while making his submissions (in CMA 7084/2020). He stated that the judgment of the Court was that of the seven member majority . They were party to the whole of the Short 'Order including the paragraphs by which the review petitioners are aggrieved. However , for the purposes of Rule 8 that judgment had to be regarded as having been delivered by the ten member Bench. In other words, it was the ten member Bench that was the 'same Bench,' in terms of Order XXVI Rule 8 of the SCR, that had 'delivered the judgment... sought, to be reviewed.' Therefore, the review petitions had to be heard by a Bench that included the learned Judges in the minority as well. Learned counsel referred to a number of decisions of this Court that, according to him, show ed that a judgment in review was heard by the same number of. Judges who had delivered it. On a query from the Court, learned counsel accepted that the overwhelming majority of the decisions relied upon by him were unanimous verdicts. However , he submitted that two had involved dissents and he relied in particular on one of those cases: Zulfiqar Ali Bhutto Vs. The State (PLD 1979 SC 741) ("the Z A Bhutto case" ). 7. It will be recalled that (as presently relevant) Mr.Zulfiqar Ali Bhutto and other accused had been tried and convicted by the Lahore High, Court. Mr. Bhutto's subsequent appeal to this Court against his conviction failed. It was heard by a seven member Bench and was dismissed 4:3. The subsequent review petition, decided by the above-cited reported judgment, was heard by the same seven member Bench. It was dismissed unanimously . Two reasoned judgments were delivered. ...One was by Justice Muhammad Akram, which was agreed with by the three learned Judges who, like him, had dismissed Mr . Bhutto's appeal. The other was delivered by Justice Dorab Patel, which was agreed upon by the two learned Judges who, like him, had allowed the appeal. Both judgments are relevant to our present inquiry . However , learned counsel relied only on the following paragraph from the judgment of Justice Muhammad Akram: "27. At a subsequent stage a question arose as to the position of the three learned Judges of this Court who had recorded dissenting opinions in regard to the disposal of the petitioner's appeal. Again, relying upon the aforesaid rule 6, we took the view that as they were part of the Bench that delivered the judgment sought to be reviewed, their presence on the Bench was necessary , as they were continuing as Judges of the Supreme Court and were available for the disposal of the review petition." (emphasis supplied) It was argued that the same situation applied in the present case. It was further submitted that the Z A Bhutto case, having been decided by a seven member Bench, was binding upon us (a six member Bench). On the foregoing basis it was prayed that a suitable declaration or order may be made that the review petitions in the present case be heard by a Bench inclusive of the three learned Judges in minority . 8. At this stage, the attention of learned counsel wp.s drawn to Order X, Rule 2 of the SCR which provides as follows: "2. Subject to the provisions contained in Order XXVI, a judgment pronounced by the Court or by majority of the Court or by a dissenting Judge in open Court shall not afterwards be altered or added to, save for the purpose of correcting a clerical or arithmetical mistake or an error arising from any accidental slip or omission." (emphasis supplied)
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The context for referring to this provision was, of course, the crucial questions raised in these applications, namely: according to the meaning and for the purposes of Rule 8, what is the judgment that is sought to be reviewed? And which is the Bench that has delivered it? More specifically , a question was put to learned counsel with reference to Order X, Rule 2: since this provision clearly contemplates three different types of judgments, could for example, a minority judgment (such as a dissent) be reviewed? Initially , Mr. Munir A. Malik was inclined to answer this question in the negative. This was on the basis of Rule 1 of Order XXVI, which provides: 'the Court may review its judgment or order .' Learned counsel submitted, relying in particular on the word emphasised, that there could be only one judgment of the Court, that of the Bench in its entirety (if unanimous) or its majority , if such be the case. That alone was the judgment that could be reviewed, and none was possible of a minority judgment. Hence, he submitted that Order X, Rule 2 had no 'relevance for the purposes of review jurisdiction, i.e., Order XXVI. 9. It was pointed out to learned counsel that the learned petitioner had, as noted above, also sought a review of the minority judgment delivered by Justice Yahya Afridi. On the position taken by learned counsel such a review would obviously be impossible. In the event, as the hearing proceeded learned counse l reconsidered his position and ultimately accepted that a review of a minority judgment was also possible but submitted that this matter should be settled in a later , more appropriate, case. 10. Next, Mr. Hamid Khan and Mr. Rasheed A. Rizvi, learned counsel who appeare d for the other review petitioners (in CMA Nos. 7169, 7170, 7171.7172, 7086 and 7087, all of 2020), adopted the submissions made by' 'Mr. Munir A. Malik. However , they did not express any view on whether a review of a minority judgment is possible. Mr. Latif Afridi, one of the senior most members of the Bar and currently the President of the Supreme Court Bar Association (which too is a review petitioner), also appeared before the Court and filed written submissions in support of the foregoing. 11. Mrs. Isa, the spouse of the learned petitioner , also filed a review petition and appeared in person. She relied on Order XXVI, Rule 8 to make the same prayer (in CMA 7085/2020). She further submitted that in the additional grounds filed by her in support of her review petition, she has sought review of each minority judgment and therefore, for this reason, the appropriate Bench for hearing the review petitions had to include the three dissenting Judges. 12. We have heard learned counsel for the review petitioners and have considered the record and case law cited,, in particular the decision in the Z A Bhutto case. The questions raised by the present applications are surprisingly complex. For reasons that will become clear as we proceed, they have to be approached somewhat obliquely . It is only in this manner that the correct constitutional and legal position 'will emerge. The Review Bench: Legal Analysis 13. The primary question posed by these applications is: what should be the numerical strength and composition of the review Bench? The answer to this question depends upon two considerations: the judgment sought to be reviewed and matters of practicability (both criteria are given in Order XXVI, Rule 8). These are the primary factors taken into account by the HCJ (in exercise of his power under Order XI), along with the relevant provisions of the Constitution, the SCR, the practice of the Court and the law laid down by it, to guide him in constituting a review Bench. 14. Now as has already been noted, the source of review jurisdiction of the Court can be found in Article 188 of the Constitution. This Article permits the Court to review 'any' judgment pronounced or order made by it subject to the provisions of an Act of Parliament or the SCR. Rule 8 of Order XXVI of the SCR is germane to the subject. It links the constitution of a review Bench with the judgment that is sought to be review ed. Rule 8 does not, however , specify the types of judgments that are amenable to review; therefore it does not curtail the classification of 'any' type of judgment given in Article 188 of the Constitution. The term 'judgment' has not -been defined anywhere in the SCR. However , Order X, Rule 2 in a context similar to Order XXVI Rule 8, enumerates three types of judgments: unanimous, majority and dissenting. This provision might be relevant for interpreting the term 'judgment' used in Rule 8 for the reason that Order X, Rule 2 itself records its connection with Order XXVI by beginning with the expression 'Subject to the provisions of Order XXVI.' A reading of the two Orders of the SCR reveals the cause of their express association: the common ality of their purpose, namely , rectification /correction of a judgment (albeit
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that whilst Order X deals with minor ministerial errors in a judgment, Order XXVI is concerned with errors in its substantive content). Therefore, the wide and ambiguous term 'judgment' used in Order XXVI, Rule 8 can be interpreted in light of the meaning assigned to it in Order X, Rule 2. Such a reading of Rule. 8 finds support from the principle of harmonious interpretation, a succinct elaboration of which is found in Mirza Shaukat Baig Vs. Shahid Jamil (PLD 2005 SC 530 ): "13. No principle of interpretation of statutes is more firmly settled than the rule that the Court must deduce the intention of Parliament from the words used in fan] Act. But if the words of an instrument are ambiguous in the sense that they can reasonably bear more than one meaning, that is to say, if the words are semantically ambiguous, or if a provision, ' if read literally , is patently incompatible with the other provisions of that instrument, the Court would-be justified in construing the words in a manner which will make the particular provision purposeful. That, in essence, is the rule of harmonious construction." (emphasis supplied) 15. At this point, a limitation imposed by Order XXVI, Rule 1 of the SCR needs to be stated. The use of the expression 'its judgment' in the said Rule suggests that only a judgment of the Court is amenable to review . That would mean a judgment (direction, order or decree) that is enforceable or binding under Article 187 or. Article 189 of the Constitution throughout Pakistan. In this respect a minority judgment does not possess the status of being enforceable as a judgment of the Court. Consequently , minority judgments, prima facie, fall outside the purview of review under Order XXVI, Rule 1. However , the other two categories of judgments given in Order X, Rule 2, namely , unanimous and majority judgments issuing directions, orders or decrees possess the attribute of being enforceable throughout Pakistan. Therefore, on a joint reading of Order XXVI, Rule 1 and Rule 8, it is these judgments that are reviewable. This conc lusion also finds support in our current legal jurisprudence, particularly in the test of review laid down by the Court which only permits a review petition to succeed if there is a material irregularity in the judgment which has a substantial effect on the result of the case. In this regard, one of the most seminal judgments is that of Chief Justice Cornelius in Lt Col Nawabzada Muhammad Amir Khan Vs. The Controller of Estate Duty (PLD 1962 SC 335 ). The relevant portion from the judgment is produced below: "... There must be a substantial or material effect to be produced upon the result of the case... if there be found material irregularity , and yet there be no substantial injury consequent thereon, the exercise of the power of review to alter the judgments would not necessarily be required. The irregularity must be of such a nature as converts the process from being one in aid of justice to a process that brings about injustice." (emphasis supplied) 16. This test was subsequently approved by the Court in Abdul Ghaf far-Abdul Rehman Vs. Asghar Ali (PLD 1998 SC 363) at para 17 and has been followed ever since. The relevance of this test is that it expressly states that a review can only succeed if it has a material effect on the result of the case i.e., it changes the outcome of the case. Short of that, even a substantial irregularity in a judgment will not convince this Court to recall its earlier decision. This test, therefore, makes it abundantly clear that a unanimous and majority judgment of the Court can be challenged in review because a correction in these judgments dan actually alter the outcome/result of a case. On the other hand, a minority judgment, whatever its content, lacks both enforceability and effect on the outcome/result of a case. As a result, under the present dispensation of the law even though a minority judgment does fall within the ambit of Article 188 of the Constitution and within the classificat ion set out in Order X, Rule 2 of the SCR, prima facie, it does not qualify the test of review . The foregoing suffices for present purposes, and therefore we leave this question open for further consideration in an appropriate case. Accordingly , insofar as the additional grounds of review filed against the minority judgments by the learned petitioner and Mrs. Isa are concerned, the same should not be heard by us i.e., the Bench that has delivered the majority judgment. Consequently , the Office is directed to separate these grounds of review (to the extent that they challenge the minority judgments) and place the same before the HCJ for appropriate orders. 17. W e will now consider the main conundrum in this case: what is to be the numerical strength and composition of a review Bench? It is obvious that where the decision of the Court is unanimous and only one judgment is delivered (which invariably happens in the overwhelming
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number of cases) there is no issue: the Bench that delivered the original judgment and the one for purposes of review in terms of Rule 8 coincide. The real question is the one raised by these applications: what, happens when there is a majority decision? In our view, the answer must be that for purposes of Rule 8 one has to look at the judgment that was delivered, and the Judges who actually gave that decision. It is those Judges who (subject to what is said below) can be considered the authors of the judgment and therefore 'the same Bench' which 'delivered the judgment' under review. 18. At this stage, it would be appropriate to recall the arguments of Mr. Munir A. Malik. His primary submission, during the hearing, was that 'same Bench' as used in Rule 8 included all the Judges in the Bench, whether they were in the majority or the minority . This contention was based upon the proposition that a judgment delivered by the Bench is a judgment of all the Judges who comprised the said Bench regardles s of whether a minority amongst them dissented. In support of his contention he relied on the Z A Bhutto case wherein this view was approved by the Court (ref: para 27 of that judgment produced above). But that legal position may not be in line with the literal interpretation of Order XXVI, Rule 8. However , we are not in a position to resolve this difference because the decision in the Z A Bhutto case was given by a seven member Bench whereas we are sitting as a six member Bench. As such, the judgment in that case is binding on us unless a larger Bench (comprised of more than 7 Judges) re-examines this matter and arrives at a dif ferent conclusion. 19. Be that as it may, .the question remains: how does the above plain reading of the SCR reconcile with the law enunciated by this Court in the Z A Bhutto case, namely , that the numerical strength of the review Bench and the original Bench has to be identical regardless of whether the judgment under review was passed by majority . This shall become clear in the following section where we will examine the final two legal elements i.e., the practice of the Court and its pronouncements on the subject of constitution and composition of a review Bench. The Practice of the Court A. Practicability 20. A particularly important factor in the practice of the Court is the discretion vested by Order XI of the SCR (reproduced above) in the HCJ to constitute Benches. Order XI lays down one of the paramount duties of the HCJ which is to ensure a smooth functioning of the Court system. The formal requirement under Order XI is that (except where its provisos apply or the law or the SCR direct otherwise) the Benches before which matters are to be placed must comprise of not less than three. Judges. Beyond that, the matter is left to the discretion of the HCJ, both as to the number of Judges who are to sit on a Bench and the composition thereof. Such a view has been affirmed consistently by this Court. Reference is made to the decision in Federation of Pakistan Vs. Mian Muhammad Nawaz Sharif (PLD 2009 SC 284 ): "122. The question of constitution of larger Bench is the prerogative of the Hon'ble Chief Justice of the Court as was held in PLD 2002 SC 939 (Supreme Court Bar Association v. Federation of Pakistan wherein it was clearly laid down as a principle that it was the sole prerogative of the Hon'ble Chief Justice to constitute a Bench of any number of Judges to hear a particular case. Neither an objection can be raised nor any party is entitled to ask for constitution of a Bench of its own…
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