SC refers Justice Isa’s review plea to CJP for bench reconstitution

ISLAMABAD: The Supreme Court (SC) Monday referred to Chief Justice of Pakistan (CJP) identical petitions seeking reconstitution of a bench for hearing the review petitions, challenging its order of June 19, 2020 to the extent of direction given to the Federal Board of Revenue (FBR) after the Full Court squashed the presidential reference, filed against Justice Qazi Faez Isa.

A six-member larger bench, headed by Justice Umar Ata Bandial, and comprising Justice Manzoor Ahmed Malik, Justice Mazhar Alam Miankhel, Justice Sajjad Ali Shah, Justice Munib Akhtar and Justice Qazi Muhammad Amin announced the verdict, reserved last year on December 10.

The court held that it is prerogative of Chief Justice of Pakistan to determine the composition of bench and hence referred to him the matter. “As a matter of law and settled practice, it is for the CJ, 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,” the court announced in a short order. The court directed its office to place the review petitions before the chief justice of Pakistan for such order as are deemed by it appropriate.

The court disposed of miscellaneous applications holding that review jurisdiction (at present) can be invoked only in relation to the judgments of the court, namely, unanimous and majority judgments.

As a matter of the current law and practice of the court, the court held that 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, CRP 296/2020, etc. regardless of whether the judgment under review was passed unanimously or by majority.

The court further held that 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.

The court held that one of the members of the bench, Justice Manzoor Ahmad Malik, will write his dissenting note.

The 28-page judgment, while referring to the practice of the court, held that 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 the bench and the composition thereof. Such a view has been affirmed consistently by this court.

Reference is made to the decision in Federation of Pakistan Vs. Mian Muhammad Nawaz Sharif (PLD 2009 SC 284): The court referred to para 122 of the said judgment holding that the question of constitution of larger bench is the prerogative of the Chief Justice of the Court as was held in PLD 2002SC 939 (Supreme Court Bar Association vs. Federation of Pakistan, wherein it was clearly laid down as a principle that it was the sole prerogative of the 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.

Similarly, the court also cited ZA 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. CRP 296/2020, etc. 25 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.

The court held that “the counsel 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 findings of guilt of the petitioner, it follows that the review petition must be dismissed”.

A 10-member full court, headed by Justice Umar Ata Bandial, on June 19, 2020 in a short order, had quashed the reference of legal effect, holding the proceedings before Supreme Judicial Council (SJC) as having abetted.

Seven judges of the full court including Justice Umar Ata Bandial, Justice Manzoor Ahmad Malik, Justice Faisal Arab, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah, Justice Munib Akhtar and Justice Qazi Muhammad Amin Ahmed had referred the matter to the Federal Board of Revenue, directing it to initiate tax proceedings against spouse and children of Justice Qazi Faez Isa.

Later on, in order to hear review petitions against the judgment, the chief justice formed a seven-judge bench comprising all the judges who wrote the majority judgment. One of the members, Justice Faisal Arab, retired on Nov 3 and later another bench was announced comprising the remaining six judges. Three judges including Justice Maqbool Baqar, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi, who held the minority view, were excluded from the larger bench.

Justice Qazi Faez Isa, Sindh High Court Bar association, Mrs Sarina Isa, wife of Justice Qazi Faez Isa, Supreme Court Bar Association and others had filed review petitions, seeking reconstitution of the court bench including the judges who gave minority judgment.