IN THE SUPREME COURT OF PAKISTAN 
( Review Jurisdiction ) 
 
 
Present: 
Mr. Justice Amir Hani Muslim 
Mr. Justice Mushir Alam 
Mr. Justice Mazhar Alam Khan Miankhel 
 
 
CMAs NO.204 AND 233 OF 2017 IN C.R.P. NO.474 OF 2016. 
(Review arising out of the judgment dated 26.09.2016 
passed by this Court in Const. Petition No.3 of 2014) 
 
 
Shahzada Aslam and others. 
 
 
 
… 
Applicants(s) 
(in both Applications) 
 
 
 
 
VERSUS 
Ch. Muhammad Akram and others (in both Applications)… 
Respondents 
 
For the Applicants  
: 
Syed Iftikhar Hussain Gillani, Sr. ASC 
 
 
 
 
Mr. Mehmood A. Sheikh, AOR (Absent) 
For Respondents  
: 
Not represented.  
Date of hearing 
: 
20-01-2017. 
 
O R D E R 
 
 
 
AMIR HANI MUSLIM, J. -   
 
 
 
CMA 204/2017 in C.R.P 474/2016 in Const. P. 3/2014 
 
 
Syed Iftikhar Hussain Gillani, learned Sr. ASC has, inter alia 
contended that if the impugned judgment remains in the field, no Superior 
Court including this Court, would be able to dispense justice without fear 
and anxiety. He next contended that the superior judiciary has a special place 
and immunity under the Constitution of Pakistan and the judiciary is 
protected from ridicule even in the Parliament of Pakistan but the impugned 
judgment is being used to malign the Hon’ble Judges at various forums and 
that the two judgments i.e Muhammad Iqbal and others vs Lahore High 
Court (2010 SCMR 632) and Asif Saeed vs Registrar Lahore High Court 
(PLD 1999 Lahore 350), were wrongly overruled by holding them to be per 
C.M.A.No.233/2017 
2 
incurim. He prays for the constitution of a larger Bench to examine the 
points raised by him. 
 
2. 
 
We have heard the learned Senior ASC and we are of the 
considered view that the request for the constitution of a larger Bench will 
be covered by Order XI of the Supreme Court Rules, 1980 which clearly 
provides that the constitution of Benches is the domain of the Chief Justice 
and no litigant or lawyer can be permitted to ask that his case be heard by a 
Bench of his choice. We are in agreement with the view taken in the case of 
In re: M.A. No. 657 of 1996 in Reference Nos. 1 and 2 of 1996 (PLD 1997 
SC 80), wherein the request for the constitution of a Full Court Bench was 
considered and turned down. While dismissing the application, it was 
observed that this is the exclusive jurisdiction of the Chief Justice to 
constitute Bench of any number of Judges and it is not at all mandatory or 
necessary for him to constitute Full Court Bench for hearing of the 
References. 
 
 
 
CMA 233/2017 in C.R.P 474/2016 in Const. P. 3/2014  
3. 
 
On 02.12.2016, when this matter was fixed before a Bench of 
which the author Judge of the impugned judgment was a Member, Syed 
Iftikhar Hussain Gillani, learned Sr. ASC contended that in terms of Order 
XXVI, Rule 8 of the Supreme Court Rules, 1980, this matter is to be placed 
before the same Bench, which had passed the judgment under review. 
Therefore, this Court passed the following order on 02.12.2016: 
“Syed Iftikhar Hussain Gillani, learned Sr. ASC for the review 
petitioners, submits that in terms of Order XXVI Rule 8 of the 
Supreme Court Rules, 1980, this matter may be placed before 
C.M.A.No.233/2017 
3 
the same Bench, which has passed the judgment under review, 
as both the other learned Members of the Bench are available. 
Office to examine and put up the case before the same Bench, 
subject to its availability.” 
4. 
 
In pursuance of these directions the office examined the case 
and a note was put up before the Hon’ble Chief Justice of Pakistan by 
referring to the Supreme Court Rules. The “Constitution of Benches” of this 
Court is the sole privilege and prerogative of the Hon’ble Chief Justice of 
Pakistan envisaged under Order XI of the Supreme Court Rules, 1980. After 
perusal of the note, the Hon’ble Chief Justice of Pakistan was pleased to 
direct the office to fix the case before a three Member Bench of which the 
author judge is a Member. Thereafter, on 09.01.2017 when this case was 
again fixed for hearing, the following order was passed: 
“Syed Iftikhar Hussain Gillani, learned Sr. ASC requests time to file 
objections to the order dated 9.1.2017, passed by the Hon’ble Chief 
Justice in C.R.P No. 474/2016, whereby he has directed the office to fix 
the matter before the three member Bench of which the author Judge is a 
Member. This matter is adjourned to next week; meanwhile, the learned 
Counsel shall collect the order dated 9.1.2017, from the office.” 
 
5. 
 
Now the matter is fixed today for hearing and the learned 
Counsel has filed CMA No. 233/2017 and has contended that the review 
Petition can only be heard by the same Bench. In this regard he has referred 
to the case of Asad Ali Vs. Federation of Pakistan (PLD 1998 SC 161). He 
further contended that the order passed by the Court to fix the matter before 
the same Bench was a judicial order and it could not be substituted by an 
administrative order of the Hon’ble Chief Justice of Pakistan. 
 
C.M.A.No.233/2017 
4 
6. 
 
We have heard the learned Counsel at length on this point. We 
are of the considered view that the constitution of Benches is the privilege 
and prerogative of the Hon’ble Chief Justice of Pakistan. The same was done 
in accordance with the Rules and even the order of this Court dated 
02.12.2016 was subject to examination by the Office of this Court and 
availability of the same Bench.  
 
7. 
 
Before answering the contentions of the learned Counsel for the 
Petitioners, we would like to reproduce the language of Rule 8 of Order 
XXVI of the Supreme Court Rules:- 
“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.” 
 
8. 
 
The contention of the learned Counsel for the Petitioners that 
this Rule has been interpreted in the case of Asad Ali vs. 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 
C.M.A.No.233/2017 
5 
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.    
 
9. 
 
Moreover, Order XXXIII Rule 7 of the Supreme Court Rules 
provides that “where at any stage of the proceedings in the Court, there has 
been a failure to comply with these rules, the failure shall be treated as an 
irregularity and shall not nullify the proceedings or the judgment.” The 
Rules are procedural in nature and do not confer any right on a party to 
object the formation of a Bench. We are also fortified by the judgment of 
this Court in the case of Federation of Pakistan Vs. Muhammad Shahbaz 
Sharif (PLD 2009 SC 391) wherein this Court was pleased to observe that: 
“4. 
The expression “by the same Bench” appearing in the 
aforereferred provision is qualified by “As far as practicable”. The 
rotationale for this may not be difficult to discern because the 
number of applications for review coming up before this Court 
may be frequent being the apex Court and the remedies of appeal 
and revision not being available. Since the hearings of this Court 
are held at the four Branch Registries as well i.e. at Lahore, 
Karachi, Peshawar and Quetta, it may not be practicable for 
Member of the same Bench to be available at a Bench in a given 
time. Perhaps a strict adherence to provisions of “hearing by the 
same Bench” could seriously affect the functioning of different 
Benches of this Court. 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 (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 
C.M.A.No.233/2017 
6 
of the same, the mandate of Order XXVI, Rule 8 of the Supreme 
Court Rules, 1980, stands substantially complied with. The 
applications devoid of any merit are accordingly dismissed in 
limine.”  
 
10. 
 
Furthermore, two out of the three Hon’ble Judges of the Bench 
who had heard the Constitutional Petition and delivered the impugned 
judgment are on the Bench today.  In the case of Government of Punjab Vs. 
Aamir Zahoor-ul-Haq (PLD 2016 SC 421), the issue of the nature came up 
before this Court and it was observed that: 
17. 
…..First we will address the objection raised by Mr. 
Kamran Murtaza, learned ASC for the respondent on the formation 
of the Bench 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.”     
 
11. 
 
The above are the reasons for our short order of even date 
which reads as under:- 
“For reasons to be recorded later, the Review Petitions 
alongwith Civil Misc. Applications No.204/2017 and 
233/2017, are dismissed.”  
 
Judge 
 
 
Judge 
 
 
Judge 
 
Islamabad the, 20th January, 2017. 
Not approved for reporting. 
Sohail/** 
