Constitution of bench: 'Same bench' expression leaves little room to speculate: Justice Shah

ISLAMABAD: Justice Mansoor Ali Shah has said the Order XXVI Rule 8 of the Supreme Court Rules, 1980, very clearly and firmly prescribes that the application for review shall be posted before the "same Bench" that delivered the judgment or the order sought to be reviewed.

Justice Mansoor stated this in his additional note regarding the judgment of review petitions on the Gas Infrastructure Development Cess (GIDC). Justice Mushir Alam and Justice Faisal Arab had announced their judgment on November 2nd.

"The expression "same Bench" leaves little room to speculate the constitution of the Bench: the "same Bench" means the same judges, as far as practicable, and the same number of judges, i.e., the same numeric strength of the Bench. There is no ambiguity in this regard, in the said rule," he said.

Justice Mansoor, in this regard, referred to the judgments of ex-CJP Saqib Nisar, former chief justice Anwarul Haq, and ex-judge Justice Muhammad Akram.

He wrote that Justice Saqib in the review of Judges' Pension case observed: "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."

He stated that a seven-member Full Court Bench of this Court heard the review petition in the Zulfikar Ali Bhutto case.

The main appeal in that case was decided by a majority of four to three judges. All the judges comprising majority and minority, both, were on the bench hearing the review of the majority judgment. Justice Mansoor wrote that both the Justice Anwarul and Justice Akram mentioned that the judgment sought to be reviewed was delivered by the Bench comprising seven judges of the Court. They did not consider that judgment as the judgment delivered by only four judges comprising the majority.

"These observations of their lordships are in line with the language of Rule 8, which contains the expression "same Bench that delivered the judgment or order sought to be reviewed", and not the majority members of the bench who delivered the majority judgment or order sought to be reviewed.

"It is well-established practice of this Court that when a case is heard by a bench of two or more judges, the case is decided in accordance with the opinion of such judges or of the majority of such judges.

"Judgment or order of the court is pronounced in terms of the majority opinion; such judgment or order is of the bench that heard the case and, for that matter, of the court, and not only of the judges whose opinion prevailed as a majority opinion.

"It is the numeric strength of the whole bench that determines the judicial power of its members, and not the numbers of the individual judges in majority.

"The Benazir Bhutto case was decided by a seven-member bench with six-one majority.

"The review petition filed against the majority judgment of six judges was heard by the bench of seven judges, not of six judges.

"There are many other cases of our jurisdiction as well as the Indian jurisdiction, wherein, the dissenting judges were part of the benches that heard the review petitions against the judgments of the Court pronounced in terms of the majority opinion.

"It can, therefore, be safely concluded that a judge who dissented from the majority judgment, if available, must be a member of the bench for hearing the review petition filed against that majority judgment."

Copyright Business Recorder, 2020