Mr. Justice Qazi Faez Isa has elaborated the reasons in his dissenting note regarding scope of Supreme Court review jurisdiction in hunting of houbara bustard matter in Civil Review Petitions No. 561 of 2015 etc.
1. I have read the judgment authored by my distinguished colleague Justice Mian Saqib Nisar, but with profound respect I cannot bring myself to agree therewith. Before proceeding to highlight the points of disagreement, it would be appropriate to set out the background and certain material facts.
2. Background – Constitution of a larger Bench: The judgment dated 19th August 2015 (“the judgment under review”) was decided by a three Member Bench. I authored it and the other Members were the then Chief Justice Jawwad S. Khawaja and Justice Dost Muhammad Khan, after which the then Chief Justice Jawwad S. Khawaja retired. When these cases came up before a three Member Bench on 10th December 2015 my distinguished colleagues were of the view that, “considering the questions involved in the matter, we request the Hon’ble Chief Justice to constitute a larger bench”, without elaborating what such questions were or why the determination thereof may require the constitution of a larger bench. I dissented. It would be appropriate to reproduce the following extract from my dissent:
“The matter is relatively simple and there is hardly any justification for the constitution of a larger Bench. Moreover, no application for the constitution of a larger Bench has been submitted nor even a verbal request has been made in this regard. Therefore, with profound respect, I cannot bring myself to agree with the recommendation for the constitution of a larger Bench. It would also be appropriate to reproduce Rule 8 of Order XXVI of the Rules, which provides that:
“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.”
I can do no better than to reproduce the following extract from the judgment of my distinguished colleague from the case of Reviews on behalf of Justice (Retd.) Abdul Ghani Sheikh and others (PLD 2013 Supreme Court 1024):
“2. There is great wisdom in law, that the review, generally and ordinarily should be heard by the same Court and the Court in this context is an interchangeable term with the Judge. The object behind the above principle is, that the Court/Judge who has heard and decided the matter has a full comprehension as to what was argued before him; what was debated upon at the time of hearing of the matter (order under review) and what was the understanding of the Judge while adverting and attending to the pleas raised before him at the time of hearing of the matter and passing the order/judgment. It is so because while exercising the review jurisdiction, which otherwise has a limited scope, the judgment/order under review could be analyzed and heeded to by the Court/Judge, inter alia, in the light of the above considerations.” (pages 1032-3)
“…the Hon’ble Judge who were not the part of the Bench which heard the matter would not like to sit as a court of appeal, while considering the review matter.” (at page 1034)
In the above cited case there was some justification for the constitution of a larger Bench since the learned judges were not unanimous in their esteemed views and as the matter was of immense constitutional and legal importance, involving as it did the treatment to be meted out to those who had been judges of the superior courts. However, the said judgment of this Court, the review whereof is sought, was a unanimous judgment. Larger Benches may also be constituted when there are conflicting judgments of this Court and such conflict needs resolution, but here we are not faced with conflicting judgments. With utmost respect, the matters to be considered in these review petitions are not of a nature that may have required a departure from the Rules and the longstanding continuous practice of this Court. Therefore, I would humbly request the Hon’ble Chief Justice to let these matters be heard by the same number of judges who had earlier heard the case, i.e. three members, incidentally two of whom (including myself) are still on the Bench.”
Despite my abovementioned note, a larger Bench of five Members was constituted to hear these matters. To paraphrase, it was noted, that: (1) no request for the constitution of a larger Bench was made, (2) Rule 8 of Order XXVI of the Supreme Court Rules (“the Rules”) required review petitions to be ordinarily heard by the same Bench, (3) the reasons (for not constituting larger Benches) were most ably enunciated in the referred to judgment of my learned colleague, (4) it wasn’t the practice of this Court to constitute larger Benches to hear review petitions and (5) that a larger Bench hearing a review would be effectively sitting as a court of appeal.
3. Mr. Kamran Murtaza, the learned counsel for one of the respondents, objected to the formation of the Bench, however, my distinguished colleagues over-ruled the objection in the following terms:
“Rule 8 of Order XXVI of Supreme Court Rules, 1980 stipulates that as far as practical the review will be heard by the same Bench. The Rule provides a flexibility in constitution of the Bench, and rightly so, as there may be situation where the constitution of the same Bench may be impossible for the reason beyond the control of anyone, as in case of retirement of a judge or his indisposition on account of failing health. The objection therefore, is misconceived and accordingly repelled.”
4. Article 188 of the Constitution of the Islamic Republic of Pakistan (“the Constitution”) provides how review of the judgments and orders of this Court are to be attended to, which is reproduced here under:
“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.”
Article 188 makes it clear that the powers of review are subject to Federal law and of any rules made by the Supreme Court. There is no Federal law on the subject. However, the Supreme Court has enacted the Supreme Court Rules 1980 (“the Rules”) and Rule 8 of the Order XXVI of the Rules (“the said Rule” or “Rule 8”) is in respect of review applications and provides that, “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”. Once rules as envisaged under Article 188 of the Constitution have been enacted with regard to the review jurisdiction such rules, that is the Rules, have great sanctity.
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