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P L D 2021 Supreme Court 639

Present: Umar Ata Bandial, Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel, Sajjad Ali
Shah, Munib Akhtar and Qazi Muhammad Amin Ahmed, JJ
JUSTICE QAZI FAEZ ISA and others---Petitioners
Versus
The PRESIDENT OF PAKISTAN and others---Respondents
Civil Review Petition No.296 of 2020 along with C.M.A. No. 7084 of 2020, Civil Review
Petition No.297 of 2020 along with C.M.A. No. 7086 of 2020, Civil Review Petition No.298 of 2020
along with C.M.A. No. 7085 of 2020, Civil Review Petition No.299 of 2020 along with C.M.A. No. 7087
of 2020, Civil Review Petition No.300 of 2020 along with C.M.A. No. 7169 of 2020, Civil Review
Petition No.301 of 2020 along with C.M.A. No. 7170 of 2020, C.M.A. No.4533 of 2020 in C.R.P. No.
Nil of 2020, Civil Review Petition No.308 of 2020 along with C.M.A. No. 7171 of 2020, Civil Review
Petition No.309 of 2020 along with C.M.A. No. 7172 of 2020 and Civil Review Petition No.509 of 2020,
decided on 22nd February, 2021.
Per Umar Ata Bandial, J.; Mazhar Alam Khan Miankhel, Sajjad Ali Shah, Munib Akhtar and Qazi
Muhammad Amin Ahmed, JJ agreeing; Manzoor Ahmad Malik, J dissenting.
(a) Supreme Court Rules, 1980---
----O.X, R.2 & O. XXVI, Rr. 1 & 8---Constitution of Pakistan, Art. 188---Review jurisdiction of the
Supreme Court---Scope---Minority/dissenting opinion in the judgment under review---Scope---Review
jurisdiction could be invoked only in relation to unanimous and majority judgments of the Supreme
Court---Minority judgments, prima facie, fell outside the purview of review under O.XXVI, R.1 of the
Supreme Court Rules, 1980---However, the other two categories of judgments given in O.X, R.2 of the
said Rules, namely, unanimous and majority judgments issuing directions, orders or decrees possessed
the attribute of being enforceable throughout the country, therefore, on a joint reading of O.XXVI, Rr.1
& 8 of the Supreme Court Rules, 1980, it was these judgments that were reviewable---Even though a
minority judgment did fall within the ambit of Art. 188 of the Constitution and within the classification
set out in O. X, R. 2 of the Supreme Court Rules, 1980, prima facie, it did not qualify the test of review.
Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty PLD 1962 SC 335
and Abdul Ghaffar-Abdul Rehman v. Asghar Ali PLD 1998 SC 363 ref.
(b) Supreme Court Rules, 1980---
----O.X, R.2, O.XI & O. XXVI, R. 8---Constitution of Pakistan, Art. 188---Review petitions before the
Supreme Court---Constitution of Bench---Numerical strength and composition of the review Bench---
Prerogative of the Chief Justice---Scope---Principles relating to the numerical strength and composition
of a review Bench and the prerogative of the Chief Justice of the Supreme Court in such regard stated.
Following are the principles relating to the numerical strength and composition of a review Bench and
the prerogative of the Chief Justice of the Supreme Court in such regard
(i) The constitution of review Benches (or any Bench) was the sole prerogative of the Chief Justice
under Order XI of the Supreme Court Rules, 1980 ('the 1980 Rules'). As a matter of law and settled
practice it was for the Chief Justice, as the master of the roster, to determine the composition of a Bench
and he may, for like reason, constitute a larger Bench for hearing the review petition;

Federation of Pakistan v. Mian Muhammad Nawaz Sharif PLD 2009 SC 284 ref.
(ii) The direction in Order XXVI, Rule 8 of the 1980 Rules that review petitions should be posted
before the 'same Bench' was subject to the requirements of practicability;

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(iii) In constituting a review Bench the Chief Justice should ensure substantial compliance with
Order XXVI, Rule 8 of the 1980 Rules by including the author Judge (if available) in the review Bench.
However, in case he was not available or where it was not practicable to do so, then any other Judge who
agreed with the author Judge should be included in the Bench, as there was no obligation to have exactly
the same Judges on the Bench;
Federation of Pakistan v. Mian Muhammad Nawaz Sharif PLD 2009 SC 391 and Shahzada Aslam
v. Ch Muhammad Akram PLD 2017 SC 142 ref.
(iv) The numerical strength of a review Bench had to be the same as that of the original Bench,
regardless of whether the judgment under review was passed unanimously or by majority;
Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741 ref.
(v) For the purposes of Order XXVI, Rule 8 of the 1980 Rules the minimum numerical strength of
the Bench that delivered the judgment or order under review was the numerical strength of the Bench
which heard and decided the original matter, regardless of whether the judgment under review was
passed unanimously or by majority; and
(vi) In certain circumstances, the Chief Justice may in his discretion constitute a larger Bench
according to the importance of a matter or other considerations of practicability.
Federation of Pakistan v. Mian Muhammad Nawaz Sharif PLD 2009 SC 644 and Akhter Umar
Hayat Lalayka v. Mushtaq Ahmed Sukhaira 2018 SCMR 1218 ref.
(c) Supreme Court Rules, 1980---
----O.XI & O. XXVI, R. 8---Constitution of Pakistan, Art. 188---Review petitions before the Supreme
Court---Constitution of Bench---Numerical strength and composition of the review Bench---Prerogative
of the Chief Justice---Scope---Examples of conditions/circumstances affecting the strength of the review
Bench that may prevail with the Chief Justice of the Supreme Court listed.
Following are some of the examples of conditions/circumstances affecting the strength of the review
Bench that may prevail with the Chief Justice of the Supreme Court:
(i) The temporary and/or permanent unavailability of the Judges (e.g., because of retirement of the
Judge) who originally heard the matter;
Government of Punjab v. Aamir Zahoor-ul-Haq PLD 2016 SC 421 ref.
(ii) To ensure the smooth and efficient functioning of the Court as a whole;
Federation of Pakistan v. Mian Muhammad Nawaz Sharif PLD 2009 SC 391 ref.
(iii) The nature of cases e.g., matters that, inter alia, involved complex questions of law or were of
significant public importance were placed before a larger review Bench; and
Federation of Pakistan v. Mian Muhammad Nawaz Sharif PLD 2009 SC 664 and Fida Hussain v.
The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad PLD 1995 SC 701 ref.
iv. Deference to the norms of judicial propriety.
(d) Supreme Court Rules, 1980---
----O. XXVI, R. 1---Constitution of Pakistan, Art. 188---Review jurisdiction of the Supreme Court---
Scope---Power of review was limited in scope---Consequently, it must be exercised by all the Judges
sitting in the review Bench in such a manner that it did not overstep into the realm of revisiting or re-
hearing the original judgment.
Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty PLD 1962 SC 335
and Abdul Ghaffar-Abdul Rehman v. Asghar Ali PLD 1998 SC 363 ref.

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Per Manzoor Ahmad Malik, J; dissenting with Umar Ata Bandial, J [Minority view]
(e) Constitution of Pakistan---
----Arts. 184 & 185---Judgment (direction, order or decree) passed by the Supreme
Court, unanimously or by majority---Scope---Such judgment became the Order of
the Bench and Order of the Court---Majority judgment (Order of the Court) was the
judgment of the entire Bench that had heard the original matter.
(f) Supreme Court Rules, 1980---
----O. XXVI, R. 8---Constitution of Pakistan, Art. 188---Review petitions before the
Supreme Court---Constitution of Bench---Numerical strength and composition of the
review Bench---Scope---Review petitions shall be heard by the same Bench that had
delivered the judgment or order under review and the 'same Bench' included all the
Judges of the Bench, whether in majority or minority (subject to their availability)
as the order or judgment of the Court was an order or judgment of all the Judges
who were part of the Bench and who had delivered the judgment sought to be
reviewed.
(g) Supreme Court Rules, 1980---
----O. XXVI, Rr. 1 & 8---Constitution of Pakistan, Art. 188---Review petitions
before the Supreme Court---Judges who rendered the minority view in the
judgment under review, powers of---No provision in the Constitution or the
Supreme Court Rules, 1980 limited the jurisdiction and judicial power of a
minority judge while sitting in review of the Order of the Bench or Order of the
Court as against those Judges who had delivered the majority judgment---Any
suggestion that the Judges who dissented with the majority judgment ought to show
maximum restraint and quietude while sitting on the Bench hearing the review, may
give an impression of undermining the judicial independence of other Judges---
Grounds for review were limited and applied equally to both the Judges who
rendered the majority view and the Judges who rendered the minority view.
(h) Supreme Court Rules, 1980---
----O.XI & O. XXVI, R. 8---Constitution of Pakistan, Art. 188---Review petitions
before the Supreme Court---Constitution of Bench---Numerical strength and
composition of the review Bench---Prerogative of the Chief Justice as 'master of
the roster'---Scope---Term 'master of roster' could not be understood to mean that
the Chief Justice of the Supreme Court had unfettered discretion regarding
constitution of Benches---In fact, the discretion vested in the office of the Chief
Justice for constitution of Benches was to be exercised in a structured manner
according to the Supreme Court Rules, 1980.
For the Petitioner(s)
Mrs. Sarina Faez Isa (In-person) and Kassim Mirjat, Advocate-on-Record
(in C.R.P. No. 298/2020 and C.M.A. No. 7085 of 2020).
Munir A. Malik, Sr. Advocate Supreme Court (through Video Link from

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Karachi) (in C.R.P. No. 296 of 2020 and C.M.A. No.7084 of 2020) Kassim Mirjat,
Advocate-on-Record .
Rasheed A. Rizvi, Sr. Advocate Supreme Court (through Video Link from
Karachi) (in C.R.P. No. 297 of 2020 and C.M.A. No.7086 of 2020 and in C.R.P.
No. 309 of 2020 and C.M.A. No. 7172 of 2020).
Hamid Khan, Sr. Advocate Supreme Court (through Video Link from
Lahore) (in C.R.P. No.299 of 2020 and C.M.A. No. 7087 of 2020 and in C.R.P. No.
300 of 2020, C.M.A. No. 7169 of 2020 and in C.R.P. No. 301 of 2020, C.M.A. No.
7170 of 2020 and in C.R.P. No. 308 of 2020 and C.M.A. No. 7171 of 2020).
Nemo. (in C.M.A. No. 4533 of 2020).
Syed Rifaqat Hussain Shah, Advocate-on-Record (in C.R.P. No. 509 of
2020).
Ms. Shireen Imran, Advocate Supreme Court (in Addl. Secy. SCBAP)
Respondents: Not represented.
Dates of hearing: 8th and 10th December, 2020.
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 v. 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 reported as (Mr.) Justice Qazi Faez Isa and 14
others v. 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 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

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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 C.M.As., 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 C.M.As. (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 C.M.As. 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:

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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 of 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. 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
ascertain 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 C.M.A. 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

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that, according to him, showed 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 v. 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 was 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)
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

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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 counsel
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
appeared for the other review petitioners (in C.M.As. 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
C.M.A. 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

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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 reviewed. 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 commonality of their purpose,
namely, rectification/ correction of a judgment (albeit 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 v. 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 [an] 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

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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 conclusion 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 v. 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 Ghaffar-Abdul
Rehman v. 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 can 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
classification 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. We 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 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.

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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 regardless 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
different 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 v. 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 choice.
123. While considering the provision of Order XI and Order XXXIII, Rule 6
of the Supreme Court Rules, 1980, it was laid down in PLD 1997 SC 80 (In

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re: M.A. No.657 of 1996 in References Nos.1 and 2 of 1996) that no litigant
or lawyer can be permitted to ask that his case be heard by a Bench of his
choice, for it is the duty and privilege of the Chief Justice of the Supreme
Court to constitute Benches for the hearing and disposal of cases coming
before the Court. In Malik Hamid Sarfaraz v. Federation of Pakistan and
another (PLD 1979 SC 991) it was held that no litigant or the lawyer can be
permitted to ask that a case be heard by a Bench of his choice. In Malik
Asad Ali and others v. Federation of Pakistan (PLD 1998 SC 161) it was
held that "the qualification to hold the office of the Judge is indeed
discretion and has nothing to do with his performance as a Court or a
Member of the Court.
124. In PLD 2005 SC 186 (Ch. Muhammad Siddique and 2 others v.
Government of Pakistan, through Secretary, Ministry of Law and Justice
Division, Islamabad and others) it was held:-
"...it was not the right of petitioner/appellant to select the Judge[s], of their
own choice---To constitute a Bench was a prerogative of the Chief Justice
and the parties could not ask for a Bench of '...their choice"."
(emphasis supplied)
21. Indeed, even where the SCR direct a matter to be fixed before a Bench of a
specific number, they invariably use the expression 'not less than'. For instance,
Order XI directs that any cause, appeal or matter shall be heard and disposed of by
a Bench consisting of not less than three Judges to be nominated by the HCJ.
However, the first proviso to Order XI also permits appeals from judgments/orders
of the Service Tribunal or Administrative Courts to be heard by a Bench of two
Judges. Nevertheless, that very proviso expressly allows for the same matter to be
laid down before a larger Bench. Similarly, Order XXV requires that applications
for enforcement of Fundamental Rights should be heard by a Bench 'consisting of
not less than two Judges.' Likewise, Order XXXV, Rule 4 states that an appeal
against the judgment of the Federal Shariat Court shall be fixed before a Bench of
'not less than three members' in the case of an acquittal and before a Bench of 'not
less than two members' in all other matters. It is thus clear that any direction under
the SCR with respect to the number of Judges in a Bench is a minimum figure.
Therefore, in all the above cases the SCR leave it within the power and discretion
of the HCJ to direct the numerical strength of a larger Bench before which a matter
may be placed for hearing.
22. Clearly, in this sense the HCJ is the 'master of the roster' and he can form
review Benches according to his discretion as structured under guidance provided
from four sources, namely, Order XXVI, Rule 8 (the provision most relevant to the
present controversy), Order XI, and the practice of and the law laid down by this
Court. Rule 8 makes it abundantly clear that practicability is the dominating factor
in the constitution of review Benches. A concise definition of the term 'practicable'
has been provided in Words and Phrases (Volume 33, 1971 at page 251):
"If undertaking, procedure, or thing is possible to practice or perform or is

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capable of attainment or accomplishment, it is "practicable." An act is

"practicable" if conditions and circumstances are such as to permit its
performance or to render it feasible."
(emphasis supplied)
By subjecting the constitution and therefore composition of a review Bench to what
is practicable, Rule 8 by its own terms lays down directory criteria. The HCJ
therefore has power to take into consideration such conditions and circumstances
that can affect the formation of a review Bench. Therefore, Order XXVI, Rule 8
requires a substantial, rather than strict, compliance with its terms. And whilst it is
not possible for us to exhaustively list the conditions and/or circumstances that may
influence the strength of the review Bench in each case, a few examples will suffice
to suggest the salient factors that may prevail with the HCJ:
i. The temporary and/or permanent unavailability of the Judges (e.g., because
of retirement of the Judge) who originally heard the matter [ref:
Government of Punjab v. Aamir Zahoor-ul-Haq (PLD 2016 SC 421) at para
17];
ii. To ensure the smooth and efficient functioning of the Court as a whole [ref:
Federation of Pakistan v. Mian Muhammad Nawaz Sharif (PLD 2009 SC
391) at para 4];
iii. The nature of cases e.g., matters that, inter alia, involve complex questions
of law or are of significant public importance are placed before a larger
review Bench. For instance, in Federation of Pakistan v. Mian Muhammad
Nawaz Sharif (PLD 2009 SC 664) the strength of the review Bench was
increased to five members from the original Bench comprised of three
members; likewise in Fida Hussain v. The Secretary, Kashmir Affairs and
Northern Affairs Division, Islamabad (PLD 1995 SC 701)]; and
iv. Deference to the norms of judicial propriety.
B. Strength and Composition of Review Bench
23. The flexibility furnished by Rule 8 for the HCJ is a continuation of the
discretion vested in him by Rule 6 of Order XXVI of the erstwhile Supreme Court
Rules, 1956. This discretionary exercise of the HCJ's power was later articulated in
the Supreme Court Office Order No.P.Reg.99/90 (14)/SCA dated 03.03.1990. It
identifies the essential features of Court practice about the numerical strength of a
review Bench and about the need to include the author Judge, if available, in such a
Bench. The relevant portion from the Office Order is produced below for reference:
"...However, the practice of fixing before a Bench in which the author Judge
is a member and if he is no more available, before the Bench in which at
least one Hon'ble Judge of the previous Bench is sitting can be followed.
When none of them is available a new Bench can hear the review. Same
applies to the number of Judges on the Bench, if not the same."

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24. The said Order represents a convention in the practice of the Court and was
approved in Federation of Pakistan v. Mian Muhammad Nawaz Sharif (PLD 2009
SC 391):
"4. Moreover, the well settled practice and convention of this Court is that
an application for review is ordinarily placed before the Bench of which the
author judge or in case of unavailability any other member of the earlier
Bench is a Member, so as to ensure that working of that Bench is not
interrupted. The Office Order No.P.Reg.99/90 (14)/SCA dated 3-3-1990 of
this Court is reflective of this convention. Since two out of the three Hon'ble
Judges of the Bench which passed the judgment under review are part of this
Bench and as both of them are authors of the same, the mandate of Order
XXVI, Rule 8 of the Supreme Court Rules, 1980, stands substantially
complied with."
(emphasis supplied)
25. The above view was recently reiterated in Shahzada Aslam v. Ch.
Muhammad Akram (PLD 2017 SC 142) when learned counsel for the review
petitioner in that case claimed that only the exact 'same Bench' which heard and
decided the original matter could hear the review:
"8. The contention of the learned Counsel for the Petitioners that this Rule
[8] has been interpreted in the case of Asad Ali v. Federation of Pakistan
(PLD 1998 SC 161) (at page 253) and this Court has held that "a matter is to
be heard as far as possible by the same Bench", is misconceived. Even this
judgment, in no way, extends any help to the learned Counsel for the
Petitioners, whereas the language of the said Rule and the interpretation
given by this Court in the aforesaid case are very much clear and does not
mandate that the same Bench should hear the Review Petition. In fact, it
states that the same Bench that delivered the judgment needs to hear the
matter, but subject to the availability and practicability of the Bench, which
in other words suggests that the Review Petition needs to be assigned by the
Chief Justice or the office at least before a Bench of which the author Judge
is a Member. If the contention of the learned Counsel is accepted, it would
lead to anomalous consequences, because hundreds of review petitions are
filed and the practice of the nature will deprive the Hon'ble Chief Justice
from exercising powers under Order XI, besides it would cause
inconvenience to the lawyers and the office. Even the plain reading of Rule
8 of Order XXVI, itself does not suggest so."
(emphasis supplied)
It may be noticed from the above-quoted passages that the actual practice of the
Court is not a pedantic reading of the terms of Order XXVI, Rule 8. Instead, it
captures the spirit of the said provision. So even though the HCJ may constitute a
Bench of his choice in a review matter, the exercise of his discretion ought to be
guided by two criteria: firstly, the review Bench (at the minimum) should bear the
numerical strength of the original Bench. By convention, this practice is followed

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even in cases where only the majority judgment is under review. Secondly, the
composition of the review Bench should include the author Judge. If he is not
available then another member of the previous Bench (i.e., a Judge who agreed
with the author Judge) may substitute him. Consequently, contrary to the argument
of Mr. Munir A. Malik, there is no practice of the Court of forming a review Bench
comprised of exactly the same Judges who heard the original matter. As observed
in the aforenoted precedent, such a practice would be unworkable leading to
anomalous consequences in the hundreds of review petitions filed in the Court.
26. Having read the practice of the Court on the second criterion, the
composition of a review Bench contemplated in the Z A Bhutto case needs to be
understood in its special context. In that case the Judges who had heard the original
matter were also a part of the review Bench. This has been taken by learned counsel
for the petitioner to mean that all the members of the original Bench must be
included in the review Bench. But before such a conclusion can be drawn it needs
to be appreciated that in 1979, when this case was heard and decided, the total
strength of Judges in the Supreme Court was nine. However, prior to the hearing of
the appeal in the Z A Bhutto case, one learned Judge, Justice Qaiser Khan had
already retired. Another learned Judge, Justice Waheeduddin Ahmed, fell ill during
the course of the hearing of the appeal. Therefore, only seven Judges decided the
appeal. When the matter came up for review, the number of available Judges in the
Court was still seven. As per the existing practice of the Court at the time, the
numerical strength of the review Bench had to be maintained at seven. Hence, the
original Judges had to be a part of the seven member review Bench. Evidence of
this can be seen in para 27 of the review judgment where it was observed that the
dissenting Judges were sitting in the review Bench because they 'were continuing
as Judges of the Supreme Court and were available for the disposal of the review
petition.' Consequently, this case is good authority for the proposition that a review
Bench must bear the numerical strength of the original Bench but it is doubtful that
it mandates a review Bench to mirror the composition of the original Bench. In
fact, there is sufficient practice after 1979 which rebuts any claim whatsoever to
this effect e.g., both the numerical strength and the composition of the review
Bench in Federation of Pakistan v. Mian Muhammad Nawaz Sharif (PLD 2009 SC
644) and Akhter Umar Hayat Lalayka v. Mushtaq Ahmed Sukhaira (2018 SCMR
1218) were revised. Specifically, the size of the two review Benches was increased
from three to five, whereas the composition was altered by replacing the Judges
who had heard and decided the original matter with different Judges despite the fact
that the former were still continuing as Judges of the Supreme Court and were
therefore available for disposal of the review petitions.
27. Consequently, the following points may be summarised in the light of the
foregoing analysis of the practice of the Court:
i. The constitution of review Benches (or any Bench) is the sole prerogative
of the HCJ under Order XI;
ii. The direction in Order XXVI, Rule 8 that review petitions should be posted
before the 'same Bench' is subject to the requirements of practicability;

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iii. In constituting a review Bench the HCJ should ensure substantial

compliance with Rule 8 of Order XXVI by including the author Judge (if
available) in the review Bench. However, where it is not practicable to do so
there is no obligation to have exactly the same Judges on the Bench;
iv. The numerical strength of a review Bench has to be the same as that of the
original Bench, regardless of whether the judgment under review was passed
unanimously or by majority; and
v. In certain circumstances (as noted above), the HCJ may in his discretion
constitute a larger Bench according to the importance of a matter or other
considerations of practicability.
Exercise of Review Jurisdiction
28. We must now refer again to the Z A Bhutto case to read another valuable
judicial observation, namely, the brief judgment of Justice Dorab Patel. His
Lordship is regarded as one of the titans of the law and anything that fell from his
pen is worthy of, and warrants, close attention. As noted, he had been in the
minority in dismissing Mr. Bhutto's appeal against conviction. In the concluding
paragraph of his judgment (in review) Justice Dorab Patel reflected on how a Judge
who dissented ought to act if called upon to sit in review of the majority judgment.
His words distil the wisdom of the ages:
"However, Mr. Yahya Bakhtiar's arguments on the question of sentence were
without prejudice to his main submission, which was that the majority
judgment suffered from errors apparent on the record which had resulted in
the dismissal of Mr. Bhutto's appeal. Now learned counsel had address us
for nearly two weeks on this question, but as he has failed to persuade the
Judges, who pronounced the majority judgment of the Court, to revise the
finding of guilt of the petitioner, it follows that the review petition must be
dismissed. In these circumstances, consistently with judicial dignity and the
practice of this Court, I do not think it would be proper for me to make any
observations on learned counsel's submissions; and I would dismiss the
petition for the reasons given herein."
(emphasis supplied)
As is clear from the foregoing, Justice Dorab Patel believed that the question
whether a case had been made out for the review of a judgment was, in the final
analysis, essentially something for the Judges who actually delivered the judgment
under review to decide. If those Judges were not so persuaded, then any other
Judges sitting on the Bench hearing the review ought to show maximum restraint
and maintain judicial dignity and quietude, particularly when they had already
expressed an opposite view in the original matter. It is quite obvious that the
learned Judge was acutely aware of, and alive and sensitive to, the very real
possibility of the Judges, howsoever unwittingly and despite their best efforts,
slipping from the exercise of review jurisdiction into regarding consideration of the
review petition as but the "second round" in an ongoing litigation. The words and

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wisdom of Justice Dorab Patel are evergreen and, in our respectful view, merit
reflection by all Judges in every generation.
29. Indeed, the views expressed by Justice Dorab Patel were very recently
followed by Justice Asif Saeed Khan Khosa in the review filed against the decision
in the PANAMA case. That judgment is reported as Imran Ahmad Khan Niazi v.
Mian Muhammad Nawaz Sharif (PLD 2017 SC 265). In this case the three Judges
in majority formed a JIT to probe into the allegations against the then sitting Prime
Minister whereas the two minority Judges, including Justice Khosa, ordered the
immediate disqualification of the Prime Minister from the National Assembly.
Subsequently, the report of the JIT was released pursuant to which the three
majority Judges and the two minority Judges by order of the Court jointly declared
the Prime Minister debarred from holding public office. Thereafter, a review was
filed by the respondent against this decision. The judgment in that case is reported
as Mian Muhammad Nawaz Sharif v. Imran Ahmed Khan Niazi (PLD 2018 SC 1).
During the hearing of the review, learned counsel for the petitioner (previously the
respondent) raised an objection against the inclusion of the two minority Judges in
the Bench. According to him, the said Judges had become functus officio after
rendering their opinions. In the circumstances of the case, Justice Ejaz Afzal Khan,
speaking for the whole Bench, repelled this contention of counsel for being
academic in nature.
30. Accordingly, the review petitions were heard and dismissed unanimously by
the five Judges. Justice Khosa, one of the minority Judges, also added a brief note
of his own. This is produced below for reference:
"No ground has been taken in these review petitions nor any argument has
been advanced at the bar questioning anything observed or concluded by me
in my separate opinion recorded in the main case. The other Hon'ble
members of the Bench have not felt persuaded to review their opinions
already recorded. These review petitions are, therefore, dismissed."
(emphasis supplied)
It is evident from His Lordship's observation that he did not deem it appropriate to
comment on the judgment passed by the majority because the majority Judges
themselves were not persuaded to review their opinion. Therefore, in these
circumstances he dismissed the review petitions simpliciter. At this stage, it must
be reiterated that the power of review is limited in scope (ref: Lt.-Col. Nawabzada
Muhammad Amir Khan and Abdul Ghaffar-Abdul Rehman). Consequently, it must
be exercised by all the Judges sitting in the review Bench in such a manner that it
does not overstep into the realm of revisiting or re-hearing the original judgment.
Conclusion
31. Accordingly, in light of what has been discussed above, these miscellaneous
applications are disposed of as follows:
i. Review jurisdiction (at present) can be invoked only in relation to the
judgments of this Court, namely, unanimous and majority judgments.

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ii. As a matter of the current law and practice of the Court:

a. for the purposes of Order XXVI, Rule 8, the minimum numerical strength
of the Bench that delivered the judgment or order under review is the
numerical strength of the Bench which heard and decided the original matter,
regardless of whether the judgment under review was passed unanimously or
by majority; and
b. the review Bench should comprise the author Judge, if still on the Court,
as its member, and in case he is unavailable then any other Judge who
agreed with the author Judge should be included in the Bench.
iii. As a matter of law and settled practice it is for the HCJ, as the master of
the roster, to determine the composition of a Bench and he may, for like
reason, constitute a larger Bench for hearing the review petition.
32. Therefore, the Office is directed to place the review petitions before the
HCJ for such orders as are deemed appropriate.
Sd/-
JUDGE
I have read the order. I agree with the conclusion drawn in
Para 31(ii)(a) (numerical strength of review Bench).
However, I would attach my separate note for remaining
findings /observations given in the order.
Sd/-
JUDGE
Sd/-
JUDGE
Sd/-
JUDGE
Sd/-
JUDGE
Sd/-
JUDGE
Sd/-
JUDGE
MANZOOR AHMAD MALIK, J.---I have had the privilege to read the
Order dated 22.02.2021 (the Order) of my learned brother Umar Ata Bandial, J
with which other learned Members of the Bench, except me, have concurred. I do
agree with the conclusion drawn in Para 31(ii)(a) of the order regarding numeric
strength of a Bench to review a judgment under Order XXVI, Rule 8 of the
Supreme Court Rules, 1980 (SCR). However, with respect, I have not been able to
subscribe to several findings/observations given in the order for reasons discussed
hereunder.
2. Through the instant miscellaneous applications filed under Order XXVI,
Rule 8 of the SCR, the applicants have prayed for reconstitution of Bench for

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hearing several review petitions filed against the judgment passed by this Court in
Justice Qazi Faez Isa v. President of Pakistan and others (Const. P. No. 17 of 2019)
and connected petitions.
3. Constitutional Petition No. 17 of 2019 and other connected petitions filed
under Article 184(3) of the Constitution of the Islamic Republic of Pakistan
(Constitution) were disposed of through a short order dated 19.06.20201 by a ten
Member Bench (Larger Bench) of this Court, of which I was also a member. The
review petitioners are aggrieved mainly of Paras 3 to 11 of the short order to which
seven Members of the Larger Bench including me, had concurred. Later on,
detailed reasons for the short order dated 19.06.2020 recorded by my learned
brother Umar Ata Bandial, J were released on 23.10.20202 to which Justice Faisal
Arab added his concurring separate note. Three learned Members of the Larger
Bench passed separate minority judgments. Thereafter, a seven-Member Bench
(Review Bench) was constituted by the Hon'ble Chief Justice of Pakistan to hear
the review petitions. These petitions came up for hearing before the Review Bench
on 28.10.2020. However, the matter was adjourned on the request of review
petitioners. In the meanwhile, Justice Faisal Arab superannuated on 04.11.2020 and
thereafter, the miscellaneous applications filed for reconstitution of Bench were
fixed before a Bench comprising the six remaining Judges by the order dated 11.
11.2020 passed by the Hon'ble Chief Justice (HCJ). It has been prayed in all such
miscellaneous applications that the review petitions be heard by the same number
of Judges who have passed the judgment under review except the miscellaneous
applications filed by Mr. Muneer A. Malik, Sr. ASC (representing the review
petitioner in C.R.P. No. 296 of 2020) and Mrs. Sarina Isa (review petitioner in
C.R.P. No. 298 of 2020), wherein they have prayed that all the Hon'ble Judges
including the Judges, who have passed the minority judgments, be made part of the
Review Bench.
4. After hearing the applicant-petitioner Mrs. Sarina Isa, present in person (in
C.R.P. 298 of 2020 and C.M.A. 7085 of 2020) and learned counsel for review
petitioners at length and perusing the available record with their assistance, it is
observed that so far as the question relating to the numeric strength and
composition of the Review Bench is concerned, the same has two segments. Firstly,
the question of numeric strength of the Review Bench and secondly what should be
its composition i.e. whether the Bench should consist of only those Judges who
passed the majority judgment or whether those Judges, who have passed the
minority judgments (in this case three learned Judges of this Court), are also to be
included in the Review Bench.
5. A judgment (direction, order or decree) passed by this Court, unanimously
or by majority becomes the Order of the Bench and Order of the Court. In simple
words, the majority judgment (Order of the Court) is the judgment of the entire
Bench that had heard the original matter.
Mr. Munir A. Malik, Sr. ASC appearing on behalf of applicant (in C.M.A.
7084 of 2020) contended that Order XXVI Rule 8 of SCR stipulates that as far as

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practicable the application for review shall be posted before the same Bench that
delivered the judgment or order sought to be reviewed. He further contended that
'same Bench' included all the Judges of the Bench, whether in majority or minority
as the Order of the Bench or Order of the Court is an order or judgment of all the
Judges who were part of the Bench that had delivered the judgment sought to be
reviewed. To substantiate his contentions, learned counsel referred to Paras 26 and
27 of the judgment passed by a seven-Member Bench of this Court in Z.A. Bhutto's
case3 wherein it was held that in terms of Rule 6 Order XXVI, Supreme Court
Rules, 1956, the review petition had to be heard by the seven Judges of this Court,
who had delivered the judgment under review, and who were all available on the
Bench for the disposal of the review petition and their presence on the Bench was
necessary, as they were continuing as Judges of the Supreme Court and were
available for the disposal of review petition.
6. It is relevant to mention that the criminal appeal4 of Mr. Zulfiqar Ali Bhutto
against his conviction and sentence was heard by a seven-Member Full Court
Bench of this Court and was decided by a majority of four to three. When the
review petitions were posted for hearing, a question arose regarding the inclusion
of three Judges who had dissented with the majority view. In Para 27 of the final
judgment whereby review was dismissed, Muhammad Akram, J observed as
under:-
"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."
7. In this backdrop, it has rightly been observed in Para 18 of the Order that, it
is not desirable to resolve this controversy because the decision in Z. A. Bhutto's
case was given by a seven Member Bench whereas to resolve the instant
controversy, a six Member Bench is sitting and unless a Larger Bench (comprised
of more than seven Judges) re-examines the matter and arrives at a different
conclusion, the decision in Z. A. Bhutto's case is binding on the Court.
In the circumstances, I agree with the contentions of learned counsel for the
applicant that the review petitions shall be heard by the same Bench that had
delivered the judgment or order under review and the 'same Bench' includes all the
Judges of the Bench, whether in majority or minority (subject to their availability)
as the order or judgment of the Court is an order or judgment of all the Judges who
were part of the Bench and who had delivered the judgment sought to be reviewed.
8. In Para 28 of the Order while referring to Para 3 of the note added by
Justice Dorab Patel in the review of Z.A. Bhutto's case it has been observed that
"the Judges who have dissented with the majority view while sitting on the Bench
hearing the review ought to show maximum restraint and maintain judicial dignity

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and quietude, particularly when they had already expressed an opposite view in the
original matter." For convenience, Para 28 of the Order is reproduced herein
below:-
28. We must now refer again to the Z. A. Bhutto case to read another
valuable judicial observation, namely, the brief judgment of Justice Dorab
Patel. His Lordship is regarded as one of the titans of the law and anything
that fell from his pen is worthy of, and warrants, close attention. As noted,
he had been in the minority in dismissing Mr. Bhutto's appeal against
conviction. In the concluding paragraph of his judgment (in review) Justice
Dorab Patel reflected on how a Judge who dissented ought to act if called
upon to sit in review of the majority judgment. His words distil the wisdom
of the ages:
"However, Mr. Yahya Bakhtiar's arguments on the question of sentence were
without prejudice to his main submission, which was that the majority
judgment suffered from errors apparent on the record which had resulted in
the dismissal of Mr. Bhutto's appeal. Now learned counsel had addressed us
for nearly two weeks on this question, but as he has failed to persuade the
Judges, who pronounced the majority judgment of the Court, to revise the
finding of guilt of the petitioner, it follows that the review petition must be
dismissed. In these circumstances, consistently with judicial dignity and the
practice of this Court, I do not think it would be proper for me to make any
observations on learned counsel's submissions; and I would dismiss the
petition for the reasons given herein."
(emphasis supplied)
As is clear from the foregoing, Justice Dorab Patel believed that the
question whether a case had been made out for the review of a judgment
was, in the final analysis, essentially something for the Judges who actually
delivered the judgment under review to decide. If those Judges were not so
persuaded, then any other Judges sitting on the Bench hearing the review
ought to show maximum restraint and maintain judicial dignity and
quietude, particularly when they had already expressed an opposite view in
the original matter. It is quite obvious that the learned Judge was acutely
aware of, and alive and sensitive to, the very real possibility of the Judges,
howsoever unwittingly and despite their best efforts, slipping from the
exercise of review jurisdiction into regarding consideration of the review
petition as but the "second round" in an ongoing litigation. The words and
wisdom of Justice Dorab Patel are evergreen and, in our respectful view,
merit reflection by all Judges in every generation."
9. There are no two opinions that Dorab Patel, J. is one of the stalwarts of
judicial fraternity of this country. Every word, order and judgment penned down by
his lordship is of immense legal significance. It, however, appears that while
drawing the conclusion in Para 28 of the Order, perhaps Para 2 of his lordship's
(Justice Dorab Patel) note in Z. A. Bhutto's case escaped the attention of my

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learned brothers. In this Para, my lord (Justice Dorab Patel) had fully discussed the
arguments canvassed by learned counsel for review petitioner, Mr. Zulfiqar Ali
Bhutto. For ready reference and to fully grasp the spirit of Para 3 of the note of
Dorab Patel, J. which has been referred in the Order, it is imperative to reproduce
Para 2 of his lordship's note, which reads as under:-
"As submitted by Mr. Yayha Bakhtiar, there are judgments in which capital
punishment has been imposed only on the persons who have actually
participated in the killing of the victim of the offence, and the lesser
sentence has been imposed on the person or persons who have instigated or
abetted the murder. Similarly there are judgments in which the lesser
sentence has been imposed for murder on account of a cleavage of opinion
in the Court which heard the appeal. But confining myself only to the
reported judgments of this Court in the last three years to which I was a
party, this principle was not followed in Aminullah v. the State, in Roshan
and 4 others v. The State and in Noor Alam v. The State. Perhaps because
the trend of authority in this Court in the last eight or ten years has been
consistently against the proposition advanced by learned counsel, he placed
great stress on the unusual cleavage of opinion in the instant case. Be that as
it may, learned counsel's main stress was on the fact that even according to
the prosecution it was not Mr. Bhutto who had fired the fatal shots at Mr.
Kasuri's car and that in any event the victim of the offence was not the
person whose murder Mr. Bhutto had planned. But these are circumstances
which, according to the settled law, were relevant to a plea for mitigation of
sentence, therefore, learned counsel should have referred to them in his
arguments before us in the appeal against Mr. Bhutto's conviction, the
moreso, as the question of sentence is a question in the discretion of the
Court. I am also not aware of any case either of this Court or of the High
Courts in which counsel for the appellant has, whilst challenging a
conviction for murder, not addressed arguments in the alternative on the
question of sentence. I, therefore, agree with the view of Akram, J., that the
question of sentence cannot be raised in a review petition, and if we were to
alter the sentence in this review, we would be unsettling the settled law. But,
although we are thus precluded by law from going into the question of
sentence, as observed by Akram, J., in the concluding paragraph of his
order, the grounds relied upon by Mr. Yahya Bakhtiar for mitigation of
sentence are relevant for consideration by the executive authorities in the
exercise of their prerogative of clemency."
(Emphasis supplied)
10. It is thus clear from the aforesaid Para 2 that Dorab Patel, J was conscious
of his jurisdiction and exercising his judicial power while hearing the review
petition gave his own observations on merits and then subscribed to the conclusion
drawn by Akram, J. who wrote the review judgment. In this context, the opinion of
Justice Abdul Kadir Shaikh expressed in the case of Federation of Pakistan v.
Muhammad Akram Shaikh5 is also relevant. This case primarily dealt with the

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question of bias in relation to some Judges hearing the review petitions. While
relying on the judgment6 of this Court with regards to the question of issuance of a
writ against the Judges of Superior Courts, Justice Abdul Kadir Shaikh observed:
"The above views expressed by Cornelius, C.J. and Muhammad Yaqub Ali,
C.J. are weighty principles of law, and I am clearly of the opinion that one
set of Judges of this Bench, which has been constituted by my Lord the
Chief Justice, cannot issue a direction to the other set of Judges or any of the
Judges of this Bench, not to associate themselves or himself in the hearing
of the Review Petition. I cannot conceive of a situation where one Judge of
a Division Bench constituted by my Lord the Chief Justice to hear a case
can direct the other Judge of the Bench not to hear the case on the ground
that he has a bias or an interest in the case, or for that matter on any other
ground whatsoever. If this bar were not to exist, then it would amount to
permitting the Judges to destroy or take away the judicial function or power
of each other, which position is neither conceived nor permitted by the
Constitution."
(Emphasis supplied)
I have not been able to set my hand on any provision of the Constitution and
the SCR that limits the jurisdiction and judicial power of a minority judge while
sitting in review of the Order of the Bench or Order of the Court as against those
Judges who had delivered the majority judgment. In my humble view, the
observation given in Para 28 of the Order that "the Judges who dissent with the
majority judgment ought to show maximum restraint and quietude" while sitting on
the Bench hearing the review, may give an impression of undermining the judicial
independence of other Judges. Indeed, the grounds for review are limited and apply
equally to both the Judges who rendered the majority view and the Judges who
rendered the minority view. In this backdrop, with utmost respect, I do not and
cannot persuade myself to subscribe to the observations and findings of my learned
brothers given in Para 28 of the Order.
11. Lastly, I would also like to observe that the term 'master of roster' used in
Para 22 of the Order cannot be understood to mean that the HCJ has unfettered
discretion regarding constitution of Benches. In fact, the discretion vested in the
office of the HCJ for constitution of Benches is to be exercised in a structured
manner according to the SCR.
(Manzoor Ahmad Malik)
Judge
MWA/J-2/SC Order
accordingl

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