Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Official Citation: 2024 PLD 1199
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2024
Decision Date: 2024-10-10
Parties: Supreme Court Bar Association of Pakistan through its President vs Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and others
Ruling Summary: This decision was rendered by the Supreme Court of Pakistan on 2024-10-10, officially reported as 2024 PLD 1199. In this matter between Supreme Court Bar Association of Pakistan through its President and Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as PLD 2024 Supreme Court 1199
Court Name: Supreme Court of Pakistan Judge(s):Amin-Ud-Din Khan, Mazhar Alam Khan Miankhel, Jamal Khan Mandokhail,
Naeem Akhtar Afghan, Qazi Faez Isa (C.J) Title:Supreme Court Bar Association of Pakistan through its President vs Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and others Case No.: Civil Review Petition No.197/2022 in Constitution Petition No.2/2022 Date of Judgment:2024-10-10 Reported As:2024 SCP 340, 2024 SCP 342, 2024 SCP 347, 2024 SCP 355, PLD 2024 Supreme Court 1199 Result: Order Accordingly Judgment
ORDER Presidential Reference No.1 of 2022, Constitution Petitions No.2 and 9 of 2022 were heard by a bench comprising of the following: Umar Ata Bandial, CJ, Ijaz Ul Ahsan, J, Mazhar Alam Khan Miankhel, J, Munib Akthar, J, and Jamal Khan Mandokhail, J. 2. The majority judgment was authored by Munib Akhtar, J with which Umar Ata Bandial, CJ, and Ijaz Ul Ahsan, J, concurred. The Judges in the minority, namely, Mahzar Alam Khan Miankhel and Jamal Khan Mandokhail, JJ, wrote their separate dissenting judgments/opinions. However, the instant review petition ("the CRP') was not fixed for hearing during Umar Ata Bandial, CJ, and Ijaz Ul Ahsan, J holding office. Therefore, their place on the Bench came to be occupied by Qazi Faez Isa, CJ and Amin Ud Din Khan, J. 3. However, Munib Akhtar, J, addressed a letter dated 30 September 2024 to the Registrar of the Supreme Court of Pakistan which concluded, "I must express my inability, at the present time, to be part of the bench constituted to hear the CRP. It may be noted that this is not a recusal and my
---
## Page 2
present inability should not be misconstrued or misinterpreted as such.' Since Munib Akhtar, J, had headed Bench No.III and had conducted cases on 30 September 2024 and we were together in the Judges tea room, therefore, the Registrar was directed to convey our request to his lordship to join the Bench, but Munib Akhtar, J, vide another letter dated 30 September 2024 reiterated his earlier position and did not join the Bench. 4. It would be appropriate to reproduce the self-explanatory minutes of the Committee constituted under section 2 of the Supreme Court (Practice and Procedure) Act, 2023 hereunder: "Minutes of the 20th Meeting of the Committee CRP NO 197/2022 and connected matters This case was fixed on Monday 30 September 2024 before a Bench comprising of the following:
Qazi Faez Isa, Chief Justice Munib Akhtar, J Amin-ud-Din Khan, J Jamal Khan Mandokhail, J Mazhar Alam Khan Miankhel, J
2. Since one of the Hon'ble members of the Bench, namely, Hon'ble Justice Munib Akhtar had expressed his inability to attend for reasons mentioned in his letter dated 30th September 2024 cases were adjourned and the Registrar was directed to request his lordship to join the Bench. The Registrar complied with the stated order and conveyed the request on the same day, i.e., 30 September 2024, to the Hon'ble Justice Munib Akhtar. However, his lordship by another letter of the same date i.e., 30th September 2024 reproduced the stated note of the Registrar and reiterated his earlier position. 3. The Registrar put up a note the above mentioned letter of Hon'ble Justice Munib Akhtar before the Chief Justice on 30th September 2024 who wrote the following thereon: "Since Justice Munib Akhtar has not conceded to the request to take his place on the Bench a meeting of the Committee constituted under the Supreme Court (Practice and Procedure) Act, 2023 is convened at 9 am on Tuesday, 1 October 2024 to consider his lordship's substitute. In this regard I propose that Justice Syed Mansoor Ali Shah to be on the said Bench. Members may be accordingly informed immediately. Copy of the said CRP may also be sent to his lordship today. Sd/- 30/9/2024" 4. The meeting of the Committee was convened at 9 am today. The members waited for Hon'ble Justice Syed Mansoor Ali Shah, however, his lordship did not attend the meeting, therefore, his SPS, Mr. Sadaqat Hussain, was contacted telephonically and he, after inquiring from his lordship, stated that he will not be participating nor wants to be a member of the said Bench. 5. Therefore, the Committee decided to appoint the second senior member of the Bench on the Chief Justice's Bench, namely, Hon'ble Justice Naeem Akhtar Afghan, on the Bench, as his lordship would be available since Bench No.1 work would conclude at 11 am and work of no other Bench will be disturbed. During the meeting Hon'ble Justice Naeem Akhtar Afghan was asked about his availability and his lordship informed that he is available. Islamabad, 1 October 2024 Sd/- Secretary Sd/- Qazi Faez Isa, Chief Justice/Chairman
Sd/-
---
## Page 3
Amin-ud-Din Khan, Judge/Member'
5. Therefore, Mr. Naeem Akhtar Afghan, J joined Bench, and a five member Bench is restored. 6. The Supreme Court Bar Association of Pakistan ("SCBAP') has filed Civil Review Petition No.197 of 2022 ("the CRP') with a delay of three days. Civil Miscellaneous Application No.4598 of 2022 to condone the delay has been submitted on the ground that the short order was issued on 17 May 2022 and the CRP was filed on 23 June 2022 and till then the detailed reasons had not been issued. The majority judgment, review whereof is sought, mentions the date 17 May 2022 but it is stated that it could not have been written on the said date because then it, and not the short order, would have been issued. The office is directed to inform when the detailed reasons by the majority were issued. 7. President of the SCBAP made his submissions in support of the CRP which he stated was filed when Mr. Ahsan Bhoon was the President. Mr. Ahsan Bhoon, who is present, states requisite resolution/approval of SCBAP was obtained before the filing of the CRP and that he supports the CRP. It is further stated that after the tenure of the then President, namely, Mr. Ahsan Bhoon, ended Mr. Abid S. Zuberi was elected as President of SCBAP who also supported the CRP which is evident from the fact that he did not withdraw the CRP. Mr. Muhammad Shahzad Shaukat is now the present President of the SCBAP states that three Presidents of SCBAP support the CRP. 8. All concerned, that is, the President of Pakistan, the SCBAP and Pakistan Tehreek-i-Insaf ("PTI") are represented before us. Senior Advocate Mr. Farooq H. Naek represents the Pakistan Peoples Party and Mr. Haris Azmat, ASC, represents the Speaker of the National Assembly. This case has been widely reported in the media (print, television and social) and the impugned majority judgment determines constitutional provision, therefore, if anyone else wants to be heard they may submit an application stating whether they support/oppose the CRP and record their submissions in support thereof. 9. A number of questions arose including the following: (1) The law/practice with regard to not abiding by the party or its leader's directions in the countries whose judgments are cited in the impugned judgment, that is, United Kingdom, United States of America, Canada, India as well as other countries. (2) Whether a Presidential Reference under Article 186 of the Constitution of the Islamic Republic of Pakistan ("the Constitution") and Constitution Petitions filed under Article 184(3) of the Constitution are in respect of the same jurisdiction of this Court, and if not, whether they could be heard together and decided or rendered an opinion thereon. (3) The effect of a Member of Parliament abstaining from voting despite directed to do so by his/her parliamentary party. (4) The effect, if any, of the impugned judgment on Articles 95 and 136 of the Constitution. 10. To be treated as part-heard. Adjourned to Wednesday, 2 October 2024 at 11.30 am.
ORDER dated: 02-10-2024 Qazi Faez Isa, CJ. CMA No. 4598/2022: We had enquired from the office vide order dated 1 October 2024 to inform the Court when the detailed reasons of the decision were issued. The Registrar has responded to the query as under: 'that the detailed reasoning of the majority view (comprising 95 pages) was received to this Office on 14.10.2022 and separate Notes of (1) Justice Mazhar Alam Khan Miankhel (comprising 17 pages) on 14.07.2022, (2) Justice Jamal Khan Mandokhail on 30.07.2022.'
---
## Page 4
The need to ascertain when the detailed reasons were issued could have been avoided if the majority judgment had inscribed the date on which it was issued. In the case of Commissioner Inland Revenue v. Sui Northern Gas Pipeline Limited (PLD 2023 Supreme Court 241) it was held that 'every judgment must inscribe the date when it is written, signed and pronounced'. 2. The office has noted that the Civil Review Petition No. 197/2022 ('CRP') was filed with a delay of three days. The petitioner is the Supreme Court Bar Association of Pakistan ('SCBAP') and it has filed the listed application seeking the three-days delay in filing to be condoned. The President of the SCBAP stated that the review petition was filed on 23 June 2022, which was well before the detailed reasons were issued. He further submitted that a review is filed in respect of the reasons given in a judgment or order and provided the same does not accord with the law or there is material error on the face of the record, and is, therefore, unlike an appeal against a judgment/order from which a party may be aggrieved. It is further stated that the matter relates to great constitutional public importance and as such a few days delay should not disentitle the SCBAP, which represents the Advocates of the Supreme Court and who have no personal interest in the matter to file the CRP. 3. The learned Additional Attorney-General for Pakistan and learned Mr. Farooq H. Naek do not oppose the said CMA and for the delay to be condoned, however, learned Syed Ali Zafar, representing Pakistan Tehreek-e-Insaf ('PTI') and Mr. Imran Khan ('Mr. Khan'), states that the delay should not be condoned. In this regard he submits that an institution such as SCBAP, which exclusively comprises of the Advocates of the Supreme Court, know the period within which a review petition should be filed which is 'within thirty days' as prescribed in Order XXVI, rule 2 of the Supreme Court Rules, 1980 ('the Rules'). 4. Article 188 of the Constitution of the Islamic Republic of Pakistan ('the Constitution'), creates the constitutional right to seek review of any judgment or order of the Supreme Court, and it is reproduced hereunder: '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.' The matter of review is attended to in the Rules in Order XXVI and its rule 1 states that the review may be filed 'on grounds similar to those mentioned in Order XLVII, rule I of the Code', that is, the Code of Civil Procedure, 1908 ('the Code'). Order XLVII rule 1 of the Code stipulates that a review may be filed if there is 'some mistake or error apparent on the face of the record, or for any other sufficient reason'. 5. Order XXVI, rule 3 of the Rules stipulates that 'review shall be accompanied by a certified copy of the judgment or order complained of' and rule 4 thereof states that: 'The Advocate signing the application shall specify in brief the points upon which the prayer for review is based and shall add a certificate to the effect that consistently with the law and practice of the Court, a review would be justifiable in the case. The certificate shall be in the form of a reasoned opinion.' 6. From the abovementioned provisions it is quite clear that without knowing what the reasons for the judgment or order a proper review thereof cannot be sought. Only once the detailed reasons are given can the same be read and mistake or error or other justifiable reason to file a review become apparent. Moreover, an Advocate filing a review would be handicapped to certify in the form of reasoned opinion the mistake, error or other justifiable reason on the basis of which the review merits filing. 7. We have also noted that the CRP was filed three months and twenty one days before the detailed reasons by the majority were issued. And, though the review does not assail the minority
---
## Page 5
judgments yet it was filed even before their issuance. Under these circumstances, the said application, seeking the delay to be condoned, is allowed. 8. Learned Syed Ali Zafar stated that he had drafted a number of applications and had brought them to file today in the office, but since the CRP was fixed for hearing today the office did not accept them. Therefore, we permitted him to verbally submit what he had sought. Learned counsel stated that he had sought permission to meet his client, who is confined in Adiala Jail. Surprisingly, such a request was not made earlier when we had permitted him to represent his client. Be that as it may, we direct the learned Additional Attorney-General for Pakistan ('AAG') to immediately issue instructions to ensure that such meeting is enabled today and also tomorrow morning, if Mr. Zafar wants to have two meetings. The learned AAG assures that this will be done. In case Mr. Zafar encounters any difficulty he should directly contact the learned AAG on his cell phone. 9. Learned Mr. Zafar next stated that formal notices of the CRP be issued to all parties before it is heard. However, the CRP has not been filed in an ordinary case nor in one where a particular person's property or rights may be effected, which may have merited such request. The objection cannot be taken by one who was heard throughout and is before us. 10. The SCBAP had filed Constitution Petition No.2/2022 on 17 March 2022 which came up for hearing before a two-member Bench on 19 March 2022, and notices were issued to the respondents and to certain political parties, including PTI for 21 March 2022. 11. Order of 19 March 2022 was passed by a two-member Bench of this Court comprising Umar Ata Bandial, CJ and Munib Akhtar, J., as under: 'To come up for hearing of this petition alongwith reference, if any, that is filed under Article 186 of the Constitution on 21.03.2022 at 1 pm.' Whereafter the then President of Pakistan Dr. Arif Alvi submitted a presidential reference under Article 186 of the Constitution, which was numbered as Presidential Reference No. 1 of 2022. 12. Both the Constitution Petition No. 2/2022 and the Presidential Reference were listed together before the same Bench on 21 March 2022. The reason for clubbing these two together as stated in the order was that a relief claimed by the SCBAP was the same as the questions referred to by the President for the opinion of the Supreme Court. 13. Thereafter, the then Chief Justice constituted a five-member Bench for hearing the two matters which came up for hearing on 24 March 2022, when it was recorded that they were 'partly heard'. Thereafter, hearing of these two matters took place on 28 and 29 March and on 4, 5, 6, 7 and 12 April 2022. 14. On 14 April 2022 Constitution Petition No. 9/2022 was filed by PTI, 'through its chairman, IMRAN KHAN' and it was ordered, by the Registrar, to be fixed alongwith Constitution Petition No. 2/2022 and the Presidential Reference. Constitution Petition No. 9/2022 was filed by Mr. Babar Awan, ASC. PTI was represented by Messrs Babar Awan and Ali Zafar. Thereafter, these three matters were heard together on 19, 20, 21 and 22 April and then on 9, 10, 11, 16 and 17 May 2022. On 17 May 2022 the short order was announced. Umar Ata Bandial, CJ and Ijaz ul Ahsan and Munib Akhtar, JJ were in the majority and Mazhar Alam Khan Miankhel and Jamal Khan Mandokhail, JJ, were in the minority. 15. Significantly, an earlier Presidential Reference (No. 1/2011) was filed on 2 April 2011 by the same ASC, namely, Mr. Babar Awan, however, the said learned counsel did not point out to the Court that Presidential Reference No. 1/2011 was filed eleven years earlier and was still pending, let alone that it be heard first. 16. Needless to state that the President is a symbol of the unity of the Federation and represents all citizens. And, there is no requirement in the Constitution or any law nor any emanating from the dictates of common sense to issue notice to all the citizens of Pakistan, who as a consequence of
---
## Page 6
the opinion rendered by the Supreme Court may be affected thereby. Moreover, we had already ordered that: 'This case has been widely reported in the media (print, television and social) and the impugned majority judgment determines constitutional provision, therefore, if anyone else wants to be heard they may submit an application stating whether they support/oppose the CRP and record their submissions in support thereof.' 17. In any event it is the learned counsel alone who has taken such objection, which in his case is not at all justified since he had represented his client throughout before this Court. The learned counsel then contended that the CRP has been fixed for hearing out of turn. This is incorrect as all review petitions have been ordered to be fixed as soon as possible and the instant CRP is probably amongst the oldest review petitions pending in the Supreme Court. Accordingly, the said objections are overruled. 18. Learned Mr. Zafar next objected to the constitution of the present Bench and alleged that the discretion exercised in constituting the Bench was improper, resultantly, the hearing of the CRP would be coram non judice. In this regard he referred to a judgment of this Court in the case of Raja Amer Khan v Federation of Pakistan (PLJ 2024 Supreme Court 114) which had upheld the constitutional validity of the Supreme Court (Practice and Procedure) Act, 2023 ('the Act'), except the retrospective grant of right to file an appeal in respect of cases decided under Article 184(3) of the Constitution. Subsequently, Ordinance No. VIII of 2024 was promulgated on 20 September 2024 ('the Ordinance') wherein in section 2 sub-section (1) in the Act the following was substituted: '(1) Every cause, appeal or matter before the Supreme Court shall be heard and disposed of by a Bench constituted by the committee comprising the Chief Justice of Pakistan, the next most senior Judge or the Supreme Court and a Judge of the Supreme Court nominated by the Chief Justice of Pakistan, from time to time.' He submitted that the Senior Puisne Judge had expressed his reservations with regard to the Ordinance through his letter dated 23 September 2024 which concluded by requiring the constitutional validity of the Ordinance to be determined or a Full Court meeting be convened with regard thereto or restore the composition of the earlier Committee. The learned counsel was advised to desist from proceeding further in this regard as it may constitute disrespecting the Hon'ble Judge, however, he insisted and persisted. Therefore, he was posed the question whether the Constitution or any law requires that a Judge can call upon the Chief Justice of Pakistan or the said Committee to determine the constitutional validity of any law or that it could be determined on the administrative side by the Full Court. The learned counsel candidly conceded that there is no such provision. 19. The learned counsel also referred to the reply dated 25 September 2024 of the Chief Justice to the letter of the Senior Puisne Judge. Again he was cautioned not to bring the same into open Court as it may be disrespectful, but once again the learned counsel insisted and persisted. Though the Chief Justice of Pakistan was under no legal obligation to justify his decision to nominate another Judge on the Committee in place of Munib Akhtar, J, however, in his reply he gave a number of reasons. Therefore, the said objection having no basis in law is overruled. 20. Learned Mr. Zafar objected to the Bench on the ground that one of the author Judges, that is, Munib Akhtar, J, was not on the Bench. The learned counsel was reminded that this five-member Bench as it was originally constituted included Munib Akhtar, J, but his lordship had expressed his inability to be part of it as was recorded in the order dated 30 September 2024. To ensure his lordship's presence on the Bench an attempt was made to formally request his lordship to attend the Court but his lordship declined by another letter of the same day, that is, 30 September 2024 and maintained his earlier position. Thereafter, the Chief Justice of Pakistan proposed the name of the Senior Puisne Judge to be on the Bench to the Committee, however, his lordship did not want to
---
## Page 7
be part of the Bench, therefore, another Judge was nominated, who was part of Bench No. 1 and was available. Whilst the learned counsel is correct that ideally Munib Akhtar, J should have been part of the Bench, however, since his lordship had repeatedly expressed his inability and as the matter could not be left unattended the Bench was re-constituted in accordance with the law. Reference in this regard may also be made to Order XXVI, rule 8 of the Rules, which states, as under: '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.' The operative words in the provision are 'as far as practicable' and to ensure this every effort was made. However, neither this Court nor the Committee nor the Chief Justice of Pakistan has the power to compel the Hon'ble Judge to sit and hear the case if he is not so inclined. Accordingly, the objection taken in this regard is overruled. 21. The learned Mr. Zafar also referred to section 7B of the Act and stated that there should be a recording of the present proceedings. He was informed that this was being done and requisite instructions in this regard have also been issued. 22. We may conclude by stating that learned Mr. Zafar has challenged the constitutionality of the Ordinance but at the same time wanted compliance with some of its provisions, that is, sections 7A and 7B thereof. 23. Since considerable time was taken in hearing the aforesaid objections raised by the learned Mr. Zafar the hearing of the CRP was adjourned on his request. To come up on Thursday, 3 October 2024 at 11.30 am.
Order dated: 03-10-2024 Qazi Faez Isa, CJ. For reasons to be recorded later, Civil Review Petition No. 197 of 2022 is unanimously allowed and the majority order dated 17 May 2022 and detailed judgment of the majority are set aside. 2. We would like to record our appreciation of the manner in which the learned counsel conducted the case, and particularly of the learned Syed Ali Zafar, who stated that his client wants to withdraw from the proceedings, but was kind enough to accept to act as amicus curiae.
JUDGMENT Qazi Faez Isa, CJ. Constitution Petition No. 2 of 2022 was filed by the Supreme Court Bar Association of Pakistan through its President ('the Bar Association') under Article 184(3) of the Constitution of the Islamic Republic of Pakistan ('the Constitution') and it sought to ensure that the members of the National Assembly ('MNAs') were not prevented from coming to the National Assembly to vote on the vote of "no-confidence" which had been presented against the then Prime Minister, Mr. Imran Ahmed Khan Niazi. Copies of the resolution, submitted under Article 95(1) of the Constitution, by 102 MNAs, and the requisition calling upon the Speaker to summon the National Assembly, under Article 54(3) of the Constitution, were attached with the petition. Article 95(4) of the Constitution stipulates that if a no-confidence resolution, 'is passed by the majority of total membership of the National Assembly the Prime Minister shall cease to hold office'. 2. Constitution Petition No. 2 of 2022 ('Constitution Petition No. 2') was filed on 17 March 2022 and when it came up for hearing on 19 March 2022 before a two-member Bench of this Court, comprising of Chief Justice Umar Ata Bandial and Justice Munib Akhtar, it was ordered that: 'The petitioner, Supreme Court Bar Association, is before us in aid of public interest to assure that the rights of Parliamentarians are exercised in accordance with the Constitution and the law. The Attorney-General for Pakistan has assured us of the Federal Government's commitment to the process under Article 95 of the Constitution to be followed strictly in accordance with law.'
---
## Page 8
The said Bench also recorded the statement of Mr. Khalid Javed Khan, the then Attorney-General, as under: 'He [Attorney-General] also informs us that the Federal Government is filing a Reference under Article 186 of the Constitution of Islamic Republic of Pakistan ("Constitution") seeking delineation of the scope and meaning of certain provisions contained in Article 63A of the Constitution.' Before the reference was filed their lordships had decided to entertain it and had directed that if and when it is filed the reference should be fixed for…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.