IN THE SUPREME COURT OF PAKISTAN  
 
    (Review Jurisdiction)  
 
 
 
 
PRESENT: 
Mr. Justice Umar Ata Bandial 
Mr. Justice Manzoor Ahmad Malik 
Mr. Justice Mazhar Alam Khan Miankhel 
Mr. Justice Sajjad Ali Shah 
Mr. Justice Munib Akhtar  
Mr. Justice Qazi Muhammad Amin Ahmed 
 
CIVIL REVIEW PETITION NO.296 of 2020 a/w 
C. M. A. NO. 7084 OF 2020 & 
 
CIVIL REVIEW PETITION NO.297 of 2020 a/w 
C. M. A. NO. 7086 OF 2020 & 
 
CIVIL REVIEW PETITION NO.298 of 2020 a/w 
C. M. A. NO. 7085 OF 2020 & 
 
CIVIL REVIEW PETITION NO.299 of 2020 a/w 
C. M. A. NO. 7087 OF 2020 & 
 
CIVIL REVIEW PETITION NO.300 of 2020 a/w 
C. M. A. NO. 7169 OF 2020 & 
 
CIVIL REVIEW PETITION NO.301 of 2020 a/w 
C. M. A. NO. 7170 OF 2020 & 
 
C.M.A NO.4533 OF 2020 IN CRP NO. NIL OF 2020 &  
CIVIL REVIEW PETITION NO.308 of 2020 a/w 
C. M. A. NO. 7171 OF 2020 &  
 
CIVIL REVIEW PETITION NO.309 of 2020 a/w 
C. M. A. NO. 7172 OF 2020 &  
 
CIVIL REVIEW PETITION NO.509 of 2020.   
 
Justice Qazi Faez Isa  
      … Petitioner(s) 
(in CRP No.296/2020) 
 
 
Sindh High Court Bar Association  
      … Petitioner(s) 
(in CRP No.297/2020) 
 
 
Mrs. Sarina Isa 
      … Petitioner(s) 
(in CRP No.298/2020) 
 
 
Supreme Court Bar Association  
      … Petitioner(s) 
(in CRP No.299/2020) 
 
 
Muhammad Asif Reki President  
Quetta Bar Association   
      … Petitioner(s) 
(in CRP No.300/2020) 
 
 
CRP.296/2020, etc. 
2
 
Shahnawaz Ismail, VC Punjab Bar 
Council   
      … Petitioner(s) 
(in CRP No.301/2020) 
 
 
Balochistan Bar Council   
      … Petitioner(s) 
(in CRP No.308/2020) 
 
 
Pakistan Federal Union of Journalists  
      … Petitioner(s) 
(in CRP No.309/2020) 
 
 
Abid Hassan Minto  
     … Applicant(s) 
(in CMA No.4533/2020 in 
CRP No.Nil of 2020) 
 
 
Pakistan Bar Council thr. VC 
     … Applicant(s) 
 (in CRP.509 of 2020) 
 
 
 
 
 
 
VERSUS 
 
The President of Pakistan and others  
      …Respondent(s) 
(in CRP.296-301& 308-309 & 
CRP.509 of 2020) 
 
 
The Supreme Judicial Council thr.  
its Secretary and others  
     … Respondent(s) 
(in CMA No.4533 of 2020) 
 
 
 
 
 
 
For the petitioner(s) 
: Mrs. Sarina Faez Isa (In-person) 
Mr. Kassim Mirjat, AOR. 
(in CRP.298/2020 & CMA.7085/2020). 
 
Mr. Munir A. Malik, Sr.ASC. 
(through Video Link from Karachi). 
(in CRP.296/2020 & CMA.7084/2020) 
Mr. Kassim Mirjat, AOR. 
 
Mr. Rasheed A. Rizvi, Sr. ASC.  
(through Video Link from Karachi). 
(in CRP.297/2020 & CMA.7086/2020 & 
in CRP.309/2020 & CMA.7172/2020) 
 
Mr. Hamid Khan, Sr. ASC.  
(through Video Link from Lahore). 
(in CRP.299/2020 & CMA.7087/2020 & 
in CRP.300/2020 & CMA.7169/2020 & 
in CRP.301/2020 & CMA.7170/2020 & 
in CRP.308/2020 & CMA.7171/2020) 
 
Nemo. 
(in CMA.4533/2020) 
 
Syed Rifaqat Hussain Shah, AOR.  
(in CRP.509/2020) 
Ms. Shireen Imran, ASC.  
(in Addl. Secy. SCBAP) 
 
 
 
Respondents  
: Not represented.  
 
 
 
Dates of hearing  
: 08.12.2020 & 10.12.2020. 
 
* * * * * * *  
CRP.296/2020, etc. 
3
 
 
 
 
O R D E R 
  
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 Vs. 
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 Vs. 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 
CRP.296/2020, etc. 
4
minority judgments rendered by three learned members of the 
Bench. 
 
Factual Context 
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 CMAs, 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 CMAs (filed by the Bar 
CRP.296/2020, etc. 
5
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 CMAs 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. 
 
 
 
 
 
CRP.296/2020, etc. 
6
The Supreme Court Rules, 1980 (“SCR”) framed under 
Article 191 of the Constitution: 
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 
CRP.296/2020, etc. 
7
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 CMA 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 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 Vs. The State (PLD 1979 SC 741) (“the Z A Bhutto 
case”).  
CRP.296/2020, etc. 
8
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 
CRP.296/2020, etc. 
9
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 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.  
CRP.296/2020, etc. 
10
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 
CMA 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 CMA 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 
CRP.296/2020, etc. 
11
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 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 
CRP.296/2020, etc. 
12
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 Vs. 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 
CRP.296/2020, etc. 
13
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 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 Vs. 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) 
 
CRP.296/2020, etc. 
14
16. 
 
This test was subsequently approved by the Court in 
Abdul Ghaffar-Abdul Rehman Vs. 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 
CRP.296/2020, etc. 
15
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.  
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.  
CRP.296/2020, etc. 
16
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 Vs. 
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 
CRP.296/2020, etc. 
17
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 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 
CRP.296/2020, etc. 
18
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 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) 
 
CRP.296/2020, etc. 
19
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 
Vs. 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 Vs. 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 Vs. 
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 Vs. The Secretary, 
CRP.296/2020, etc. 
20
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.” 
 
24. 
 
The said Order represents a convention in the practice 
of the Court and was approved in Federation of Pakistan Vs. 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 
CRP.296/2020, etc. 
21
(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 Vs. 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) 
 
CRP.296/2020, etc. 
22
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 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 
CRP.296/2020, etc. 
23
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 Vs. Mian Muhammad Nawaz Sharif (PLD 2009 SC 644) 
and Akhter Umar Hayat Lalayka Vs. 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. 
CRP.296/2020, etc. 
24
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; 
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. 
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. 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 wisdom of Justice Dorab Patel 
CRP.296/2020, etc. 
26
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 Vs. 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 Vs. 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 
CRP.296/2020, etc. 
27
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. 
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, 
CRP.296/2020, etc. 
28
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. 
 
 
         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 
 
Announced in open Court 
on 22nd day of February, 2021. 
 
 
 
 
 
Sd/- 
 
 
 
 
J(2). 
 
APPROVED FOR REPORTING.  
 
