Three-member bench should hear appeals: SC

ISLAMABAD: The Supreme Court has held that an appeal or matter be heard and disposed of by a bench of not less than three judges to be nominated by the chief justice of Pakistan.

A three-member bench of the apex court, headed by Justice Sardar Tariq Masood and comprising Justice Aminuddin Khan and Justice Muhammad Ali Mazhar, allowed the review petition filed by the State Bank of Pakistan.

“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: [Provided that (i) all petitions for leave to appeal, (ii) appeals from appellate and “With all humility to our command, we agree that the two-member bench, taking into consideration the assiduousness and exactitudes of Order XI of the Supreme Court Rules, 1980, could grant leave or dismiss the civil petition for leave to appeal, but could not modify, alter, or amend the judgment of the divisional bench of the high court for which the matter should have been fixed before a three-member bench as per the aforesaid rules,” says the judgment.

In the wake of the above discussion, the order dated September 4, 2020, is reviewed. Accordingly, the court held that CRP No. 35-K/2020 is allowed and CPLA No. 146-K/2019 is restored to its original number, which shall be fixed for hearing before a three-member bench for leave to appeal. The judgment held that if the judges hearing a petition or an appeal are equally divided in opinion, the petition or appeal, as the case may be, shall, at the discretion of the chief justice, be placed for hearing and disposal either before another judge or before a larger bench to be nominated by the chief justice.

The judgment noted that the command and dominance of Order XI of the Supreme Court Rules, 1980, is germane to the constitution of benches, which unequivocally

expounds and enlightens that 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.

The judgment further held that all petitions for leave to appeal, appeals from appellate and revisional judgments, orders made by a single judge in the high court, appeals from decisions or orders of the service tribunals or administrative courts, and appeals involving grant of bail or cancellation of bail may be heard and disposed of by a bench of two judges, but the chief justice may, in a fit case, refer any cause or appeal as aforesaid to a larger bench.

“In the instant case, while the bench was inclined to grant leave to appeal to a limited extent about the rate of mark-up, it is also a ground reality, or if truth be told, no leave to appeal was granted by this court against the impugned judgment of the high court,” the judgment states.

The court held that it is evident from the order of this court that, on the sole statement of the learned counsel for respondent No. 1, the alleged excessive rate of markup was simultaneously modified in the judgment without recording any consensual statement of the petitioner’s counsel.

The judgment stated that it is lucidly translucent without any shadow of a doubt that while modifying the decision of the high court, no leave to appeal was granted by this court. Rather, the judgment conspicuously reflects that this court was inclined to grant leave to appeal only for the reason that the rate of 10pc markup per annum on the value of the dollar seemed to be excessive. Still, on the request of learned counsel for respondent No. 1, that his client was willing to accept any reduced rate of markup, the judgment was modified while rejecting the plea of limitation.

It further held that the Supreme Court Rules, 1980, were framed in the exercise of the powers conferred under Article 191 of the Constitution, which forthrightly sanctions and empowers that, subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the court.

This civil review petition had been moved by the State Bank of Pakistan for reviewing the consolidated order dated April 9, 2020, rendered by the learned two-member bench of the apex court in CPLAs No. 146-K and 411-K/2019.

The judgment noted that the review petition had only been filed by the SBP in CPLA No. 146-K/2019 and that no review petition had been filed by the petitioners in CPLA No. 411-K/2019. Vide the aforesaid civil petitions, the judgment dated December 12, 2018, passed by the learned division bench of the Sindh High Court in appeals no. 226/2005 and 74/2006 were challenged, but on September 4, 2020, the learned two-member bench modified the high court judgment in the following terms:

“After taking into consideration the above, we were inclined to grant leave to appeal only for the reason that the rate of 10pc mark-up per annum on the value of CRP 35-K/2020 of dollars seemed to us too excessive; however, the learned counsel for the respondent No. 1 stated at the bar that this case may be disposed of at this stage as his client is ready to accept any reduced rate of mark-up which this court may determine,” says the judgment.

The judgment further noted that in the circumstances, while rejecting the plea of limitation and after holding that respondent No. 1 is entitled to get the value of the disputed certificate from the State Bank of Pakistan in Pakistani rupees, the rate of mark-up awarded by the high court is reduced from 10pc to two percent chargeable from the date when the suit was filed till its realisation.

“The review petition was fixed in the court on October 10, 2022, wherein it was pointed out that the order of the division bench of the high court was modified by the two-member bench of this court about the rate of mark-up, but leave was not granted,” says the judgment.

It noted that to thrash out this critical question of law, a notice was issued with the direction to fix the matter before a three-member bench, and, in the meantime, the parties were also directed to maintain the status quo. Despite notice, neither somebody appeared for respondent No. 2 in the review petition (Standard Chartered Bank, formerly Union Bank Limited, also the petitioner in CPLA No. 411-K/2019), nor for respondent No. 3 (Muslim Commercial Bank, formerly NIB Bank Limited), nor has any review petition been moved in CPLA No. 411-K/2019 as aforementioned.