Through the instant Petitions under Article 184(3) of the Constitution of Pakistan, 1973 (the “1973 Constitution”) the Petitioners have challenged the vires of the Supreme Court (Review of Judgements and Orders) Act, 2023 (Act No.XXIII of 2023) (the “2023 Act”). The 2023 Act is attached as an Annex to this judgment.

2.           In Constitutional Petition No.21/2023, Mr. Ghulam Mohiuddin, ASC has contended that review jurisdiction under Article 188 of the 1973 Constitution is substantially and materially different than the appellate jurisdiction of this Court exercised under Article 185. The 2023 Act attempts to amalgamate two inherently different jurisdictions of this Court. He further contends that Section 2 of the 2023 Act is hit by the doctrine of “indirect legal effect” and cannot be enforced since the objective behind it cannot be achieved without amendment of various Articles of the 1973 Constitution. The Supreme Court has the power to promulgate rules regulating its practice and procedure under Article 191 which power was exercised in 2010 and that the legislature does not have the competence to amend the said rules and thereby indirectly amend the 1973 Constitution through an Act of Parliament.

3.           In Constitutional Petition No.22/2023, Mr. Zaman Khan Vardag, ASC has contended that in the garb of “enlargement” of the review jurisdiction of this Court, as the stated purpose of the 2023 Act suggests, the legislature has in fact created an appeal against judgements/orders of this Court passed in exercise of powers under Article 184(3) which it could not have done under the current scheme and structure of the 1973 Constitution. He maintains that the 2023 Act, in its present form, envisages that the Supreme Court may sit in appeal over its own judgements since the distinction between review and appellate jurisdiction has been done away with. He further contends that the 2023 Act is a colourable exercise of legislative power for collateral purposes to do indirectly what cannot be done directly under the 1973 Constitution. There is a clear, explicit and obvious distinction between a review and an appeal in the 1973 Constitution as well as the law, with each jurisdiction having its own parameters, limits and boundaries developed over centuries of jurisprudential evolution, and constitute parts of a clear and unambiguous legal and constitutional framework. Treating the power of review akin to the powers available to the Supreme Court of Pakistan under Article 185 would lead to judicial chaos. Lastly, he contends that finality is attached to the judgements of this Court and the same cannot be reviewed in a manner that is being sought to be done by way of the 2023 Act. It amounts to providing a right of appeal to the Supreme Court against a final judgement of the Supreme Court which would destroy the concept of finality which is the hallmark of judgments of the Supreme Court, to bring an end to litigation between the parties.

4.           In Constitutional Petition No.23/2023, the Jurist Foundation through its Chairperson/CEO Mr. Riaz Hanif Rahi, ASC has contended that it is by now a settled doctrine of constitutional law that the judicial branch of the State must be independent of the executive and the legislative branches. The 2023 Act constitutes an intrusion in the independence of the judiciary in a manner that cannot be countenanced. He has also submitted that Section 2 of the 2023 Act has the effect of treating a review petition filed under Article 188 of the 1973 Constitution as if it were an appeal under Article 185 and that the two jurisdictions cannot be mixed in a manner that would seek to remove all distinguishing features between the two.

5.           All three Constitutional Petitions seek a declaration that the 2023 Act is ultra vires the 1973 Constitution and pray that the same be struck down.

6.           During pendency of these petitions, CMA No.4420/2023 was filed by the Secretary General of Pakistan Tehreek-e-Insaf (“PTI”) Mr. Omer Ayub, for his impleadment as a Respondent in Constitutional Petition No.21/2023. This application was allowed on 14.06.2023. It is the case of Mr. Ali Zafar, learned ASC for the Applicant that while Article 188 makes the power of review of judgements or orders of this Court “… subject to the provisions Act of Majlis-e-Shoora (Parliament) …”. The competence of the Parliament to legislate on the review jurisdiction of this Court has to be seen in light of Article 191 of the 1973 Constitution read with Entry 55 of the Federal Legislative List. He maintains that the 2023 Act provides that a review petition under Article 188 is to be treated as an appeal under Article 185. He maintains that a review cannot disturb the finality attached to judgements of this Court but is only meant to correct errors floating on the surface of the record. The 2023 Act purports to amend Article 188 by converting the review jurisdiction under Article 188 into an appellate jurisdiction under Article 185. Since the Constitution cannot be amended by ordinary law, therefore, the 2023 Act is liable to be struck down. He argues that Sections 2 and 3 of the Act violate Article 188 of the Constitution and in case of conflict between the Constitution and ordinary law, the Constitution is to prevail. He further submits that the 2023 Act in fact curtails the jurisdiction of the Supreme Court under Article 184(3) instead of “enlarging it” in as much as Article 184(3) entails that the judgements and orders passed thereunder by the Supreme Court are final. The only exception to this finality is that such judgements or orders may be reviewed in the exceptional circumstances on grounds similar to those available under Order LXVII Rule 1 of the Code of Civil Procedure and as mentioned in Rule 26(1) of the Supreme Court Rules, 1980. By providing for an appeal before a larger bench on facts and law, the finality of judgements and orders passed in pursuance of exercise of jurisdiction under Article 184(3) by the Supreme Court is being curtailed which the Constitution does not envisage. The jurisdiction and powers of the Supreme Court under Article 184(3) have, in this respect, substantially and negatively been affected/reduced, which is not permitted under the Constitution. He adds that since the main Sections namely Sections 2 and 3 of the Act are void being violative of the 1973 Constitution, the miscellaneous provisions contained in Sections 4 to 6 which are anchored in Sections 2 and 3 are also liable to be struck down. In support of his contentions, the learned counsel has placed reliance on the judgements of this Court reported as Muhammad Amir Khan v. Controller of Estate Duty (PLD 1962 SC 335), Rashid Ahmed v. Irshad Ahmed (1968 SCMR 12), Nawab Bibi v. Hamida Begum (1968 SCMR 104), Yousaf Ali Khan v. State (PLD 1971 SC 508), Muhammad Saifullah Khan v. Federation of Pakistan (PLD 1990 SC 79), Javed Nawaz v. State (1995 SCMR 1151), Rafiq Saigol v. Bank of Credit & Commerce International (Ovs) Ltd. (PLD 1997 SC 865), Tahir Hussain v. State (2005 SCMR 330), Mehdi Hassan v. Province of Punjab (2007 SCMR 755), Majid Mehmood v. Muhammad Shafi (2008 SCMR 554), Ghulam Murtaza v. Abdul Salam Shah (2010 SCMR 1883), Justice Khurshid Anwar Bhinder v. Federation of Pakistan (PLD 2010 SC 483), Zakaria Ghani v. Muhammad Ikhlaq Memon (2016 CLD 480), Rashid Ali Channa v. Muhammad Junaid Farooqui (2017 SCMR 1519), Mukarram Hussain v. Federal Government, M/o Defence (2017 SCMR 580), Iqbal Parvez v. Harsan (2018 SCMR 359), M. Moosa v. Muhammad (1975 SCMR 115), Justice Qazi Faez Isa v. President of Pakistan (PLD 2022 SC 119) and Shahjehan Haider Gorgani v. Chairman, Federal Land Commission (2008 SCMR 575).

7.           Mr. Mansoor Usman Awan, learned Attorney General for Pakistan appearing on behalf of the Federation has raised preliminary objections qua the maintainability of the instant Petitions and also made submissions on the merits. Insofar as maintainability of the petitions is concerned, he has argued that the Petitions do not raise questions of public importance with reference to the enforcement of fundamental rights enshrined in the 1973 Constitution. On merits, the learned Attorney General has argued that the mischief that was sought to be addressed by the 2023 Act was the lack of any meaningful review regarding judgments and orders passed by this Court in exercise of its original jurisdiction under Article 184(3). It is the Attorney General’s case that as opposed to the availability of an appellate forum if the matter were first decided by the High Court in exercise of any of its jurisdictions including Article 199 of the 1973 Constitution (first by a Single Judge and then, depending on the circumstances, a Division Bench of the High Court), there was no substantive ground for review available to an aggrieved party against a judgement or order if the matter was heard and decided by the Supreme Court in exercise of its original jurisdiction under Article 184(3) of the Constitution. This lack of a supervisory forum, in essence, breached the fundamental right to due process and fair trial enshrined in Article 10-A of the 1973 Constitution. He contended that by way of the 2023 Act, the said mischief had been redressed by the Parliament. Referring to the dicta of this Court laid down in Muhammad Amir Khan v. Controller of Estate Duty (PLD 1962 SC 335) he argued that while there is no cavil with the proposition that this Court has the constitutional authority to set precedent in terms of Article 189 of the 1973 Constitution, since Article 188 stipulates that the exercise of review jurisdiction would be “… subject to the provisions Act of Majlis-e-Shoora (Parliament) …” any constitutional interpretation prior to the 2023 Act insofar as Article 188 is concerned would be subject to the wisdom of Parliament which has exclusive powers insofar as legislation is concerned. Therefore, and as a natural corollary, the wisdom of the legislature is to take precedence over any law enunciated by this Court since the framers of the Constitution had expressly envisaged that review jurisdiction under Article 188 would be “… subject to the provisions Act of Majlis-e-Shoora (Parliament) …”. In support of his contentions, the learned Attorney General has relied on judgements of the Indian Supreme Court reported as Kantaru Rajeevaru (Right to religion in RE-9 J.) vs. Indian Young Lawyers Association ((2020) 9 SCC 121 @ paras 15-17, 22-22)) and Rupa Ashok Hurra vs. Ashok Hurra ((2002) 4 SCC 388 @ paras 42, 51).

8.           Mr. Sajeel Shehryar Swati, ASC, as an officer of this Court was, on his own request, granted permission to file a written brief/amicus brief pursuant to this Court’s order dated 19.06.2023. He has, in his brief, gone over the interplay between Parliament’s legislative competence with respect to Article 188 and Entry 55 of the Federal Legislative List. He has maintained that there is no constitutional fetter on Parliament to legislate on the subject since it derives its legislative authority on the subject from Article 188 read with Article 191 and not from the Federal Legislative List. He has also pointed out that the Article 188 subjects review jurisdiction to “… the provisions of any Act of Majlis-e-Shoora (Parliament) and any rules made by the Supreme Court …” and therefore both Parliament and the Supreme Court have the authority to regulate the review jurisdiction exercised by this Court under Article 188. In the alternate, he has argued that this Court ought to, where possible, interpret statutes in a manner that save them from being struck down. However, where there is no option but to strike down a statute, it ought to be done in a manner where the offending part of the statute is read down or struck down and the non-offending part of the statute is saved.

9.           We have heard the Petitioners appearing in person, the learned counsel for the Applicant in CMA No.4420/2023, the learned Attorney General for Pakistan and have gone through written submissions of Mr. Swati.

MAINTAINABILITY OF THE PETITIONS:

10.         Before we discuss the merits of the case, it is necessary to advert to the preliminary objections raised by the learned Attorney General for Pakistan regarding maintainability of these petitions.

11.         Article 184 of the 1973 Constitution confers original jurisdiction on the Supreme Court. For the purposes of these petitions, the relevant sub-Article i.e. 184(3) is reproduced hereunder for ease of reference:

“(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article.”

A bare reading of the sub Article reproduced above shows, as has correctly been pointed out by the learned Attorney General, that the requirements of: (i) a question of public importance; (ii) with reference to enforcement of fundamental rights need to be met before this Court can assume and exercise its jurisdiction under the said sub-Article.

QUESTION OF PUBLIC IMPORTANCE:

12.         In essence, all the Petitioners before this Court have argued that it is a salient feature of the 1973 Constitution and constitutes a part of its basic structure that the judiciary is to be independent of other branches of the Government. The said feature has been recognized by this Court in the case of Dr. Mobashir Hassan vs. Pakistan (PLD 2010 SC 1 @ para 14). Moreover, in the case of Muhammad Azhar Siddiqui vs. Pakistan (PLD 2012 SC 774), while placing reliance on this Court’s judgement rendered in Al-Jehad Trust vs. Pakistan (PLD 1996 SC 324 @ para 13) it has been noted that a category of cases which require the meeting of the question of public importance with reference to enforcement of fundamental rights test, for the purposes of invocation of jurisdiction under Article 184(3) include: “… cases that raise questions concerning the independent functioning, appointment and accountability of the superior judiciary …”.

13.         Keeping in view the dicta of this Court in Dr. Mobashir Hassan vs. Pakistan (PLD 2010 SC 1 @ para 14) and Al-Jehad Trust vs. Pakistan (PLD 1996 SC 324) and Muhammad Azhar Siddiqui ibid, we are clear in our minds that since the independence of the judiciary is a recognized salient feature of the 1973 Constitution and provisions of the 2023 Act prima facie appears to affect such independence, the instant Petitions raise questions of public importance within the contemplation of Article 184(3)of the Constitution. Further, any intrusion by any organ of the State in the independence of judiciary affects every citizen of the country and is therefore a question of great public importance.

14.         An argument was also raised to the effect that if the Petitioners wished to seek a declaration of incompatibility of the 2023 Act with the Constitution, they ought to have approached the High Court under Article 199. This argument is, with all due respect, misconceived. Unlike Article 199 of the 1973 Constitution, this Court has the unique constitutional mandate under Article 184(3) to directly entertain matters related to enforcement of fundamental rights which raise questions of public importance. This jurisdiction is also to be exercised “Without prejudice to the provisions of in Article 199 …”. Therefore, while the power of this Court to issue writs in terms of Article 199 is concurrent with that of the High Courts, it is only before this Court that questions of public importance with reference to enforcement of fundamental rights can directly be raised and entertained without being hampered by the trappings of Article 199 of the 1973 Constitution.

WITH REFERENCE TO ENFORCEMENT OF FUNDAMENTAL RIGHTS:

15.         All the Petitioners before us have argued that through the 2023 Act, their fundamental rights enshrined in Part-II, Chapter-I generally and more specifically in Articles 8, 10-A and 25 stand to be breached. It has been submitted that a judiciary which is not independent cannot protect, preserve and enforce fundamental rights. The relevant portions of the said Articles are reproduced below:

“8. Laws inconsistent with or in derogation of Fundamental Rights to be void.

(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.

10A. Right to fair trial.

For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.

25. Equality of citizens

(1) All citizens are equal before law and are entitled to equal protection of law.”

16.         As will be evident in the later parts of this judgement, the 2023 Act is an intrusion in the basic and fundamental feature of the Constitution namely the independence of the judiciary directly and undisputedly affects fundamental rights of citizens. The protection, preservation and enforcement of fundamental rights are the primary duty of this Court in its constitutional mandate as the guardian of fundamental rights of the citizens. In Baz Muhammad Kakar vs. Pakistan (PLD 2012 SC 923), this Court held that:

“Right of access to justice and independent judiciary is also one of the important rights of the citizens and if there is any threat to the independence of judiciary, it would be tantamount to denial of access to justice, which undoubtedly is a fundamental right under Article 9 of the Constitution. Whenever there is a violation of Articles 9 and 25 of the Constitution, it will involve a question of public importance with reference to enforcement of the Fundamental Rights of the citizens, who may approach the Court for the enforcement of these rights under Article 184(3) of the Constitution without having to discharge the burden of locus standi.”

In Riaz ul Haq vs. Pakistan (PLD 2013 SC 501), this Court held that:

“29. … It is to be noted that the right of “access to justice to all” is a well recognized inviolable right enshrined in Article 9 of the Constitution and is equally found in the doctrine of “due process of law”. It includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial court or tribunal.

30. It is to be noted that the independence of judiciary is one of the salient features of our Constitution. The preamble to the Constitution provides that whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust; and whereas it is the will of the people of Pakistan to establish an order wherein the independence of the judiciary shall be fully secured. The Objectives Resolution, which is now a substantive part of the Constitution by means of Article 2A of the Constitution, also commands that independence of judiciary has to be fully secured …”

In Muhammad Aslam Awan vs. Pakistan (2014 SCMR 1289), this Court held that:

“2. … Judicial independence is one of the foundational values of the Constitution of Islamic Republic of Pakistan which is based on trichotomy of powers in which the functions of each organ of the State have been constitutionally delineated. The very Preamble of the Constitution pledges “wherein the independence of judiciary shall be fully secured”. The Constitution makers conferred this independence because they wanted the Judges to “do right to all manner of people, according to law, without fear or favour, affection or ill-will” (Oath of office of Judges). The fundamental rights guaranteed under the Constitution cannot be secured unless Judiciary is independent because the enforcement of these rights has been left to Judiciary in terms of Articles 184(3) and 199 of the Constitution and the relevant law …”

In District Bar Association Rawalpindi vs. Pakistan (PLD 2015 SC 401), it was noted that:

“40. If the independence of Judiciary is curtailed in the present manner by the Executive in concert with Legislature, the fundamental rights guaranteed by the Constitution would be rendered mere textual promises of ordinary text books. The supreme law of the land (Constitution) would be brought down to the level of ordinary law, the people would be deprived of the right to enforce the guaranteed fundamental rights …”

In Justice Shaukat Aziz Siddiqui vs. Pakistan (PLD 2018 SC 538), this Court held that:

“46. Historically, the Fundamental Rights of the people require protection from the excess of the Executive and the Vested Interest, both commercial and political. In order to safeguard the Fundamental Rights of the people guaranteed under the Constitution, the Independence of Judiciary obviously must be insulated from the onslaught of the Executive and such vested Interests, who are past masters at Institutional Capture …”

Lastly, in the case of Justice Qazi Faez Isa vs. Pakistan (PLD 2021 SC 1), this Court, in categoric terms, held that:

“2. In fact, an impartial and independent judiciary is universally recognised as a core value of any civilised democracy. This is evidenced by the international conventions that protect this value as a fundamental right of the people (ref: United Nations Basic Principles on the Independence of Judiciary and The (Montreal) Universal Declaration on the Independence of Justice). The significance of an independent judiciary is also deeply embedded in Pakistan with the Constitution itself guaranteeing in its Preamble that:

“…the independence of the judiciary shall be fully secured.”

17.         Before proceeding further, we consider it appropriate to deal with the argument of the learned Attorney General to the effect that since no appeal or substantive and meaningful review is available against a judgment or order passed by this Court under Article 184(3), the due process rights of an aggrieved party under Article 10-A stand to be breached. And the 2023 Act addressed such “mischief”. With all due respect, we have found the argument to be flawed. Firstly, for the reason that it assumes that judgments/orders passed under Article 184(3) somehow violate Article 10-A. Nothing could be farther from the truth considering the process followed by this Court in passing such orders, which includes notices to parties, granting full opportunity to file pleadings and hearing them, in person or through counsel. Further, a right to seek review under Article 188 is available if a party affected by any such judgment or order was not heard and shows an error in the judgment/order which is floating on the surface of the record. Secondly, if the framers of the Constitution did not provide an appeal or an “expanded” review against such judgments/orders, such remedy cannot be inserted in the Constitution through ordinary legislation. Thirdly, absence of an appeal in a statute (in this case in the Constitution itself) does not ipso facto violate due process.

18.         A contemporary article with similar characteristics as Article 10-A of our Constitution can be found in Article 6 of the European Convention on Human Rights (“ECHR”). For ease of reference, the relevant portion of the said Article for the purpose of these petitions i.e. Article 6(1) is reproduced hereunder:

“Article 6 Right to fair trial

(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …”

In this context, the High Court of England & Wales in Dorairaj vs. Bar Standards Board ([2018] EWHC 2762 (Admin)) was petitioned to declare certain sections of the Crime and Courts Act of 2013 incompatible with Article 6 of the ECHR on the ground that an independent appellate forum was not available. While dismissing the application seeking a declaration of incompatibility, the High Court held that:

“44. … Whilst article 6 guarantees an individual a right to a fair trial, where an article 6-compliant decision is made by a court, it is trite law that article 6 does not guarantee a right of appeal (see, e.g., Porter v United Kingdom [1987] Application No 12972/87) ..”

Similarly, in Sablon vs. Belgium (Application No.36445/97 @ para 86), the European Court of Human Rights held that Article 6 did not apply to the examination of an application to reopen civil proceedings.

19.         It is clear and obvious from a plain reading of the 1973 Constitution that the framers did not envisage or provide a right of appeal against orders/judgements of this Court passed in exercise of jurisdiction under Article 184(3) which are final except for a right to seek review under Article 188 read with the 1980 Rules. It has neither been argued nor is it anybody’s case that the orders/judgments passed by this Court do not meet the requirements of procedural fairness or due process. Any attempt to insert a right of appeal through ordinary legislation, couched in whatever language, in whatever manner and through whatever device used, amounts to introducing an amendment in the Constitution and is clearly ultra vires the Constitution. Contemporary jurisprudence with respect to similarly-drafted Articles also reveals that while the right to a fair trial and due process is available, such right does not necessarily envisage a right of appeal, least of all an appeal against a judgement or order of the highest constitutional Court of the country meeting the requirements of procedural fairness and due process. Such judgments and orders are to be accepted as final.

20.         The fundamental question before us is whether the Parliament can through ordinary legislation change the very essence of review under Article 188 of the 1973 Constitution (as consistently understood by framers of all three Constitutions of our country) to the extent that it would for all intents and purposes stand converted into an appeal under Article 185 and thereby virtually obliterate the fundamental difference between the two. Such course of action, if permitted, would open the door for interference in the independence of judiciary through statutory instruments that the Constitution prohibits.

21.         We therefore find that these petitions raise questions of public importance with reference to the enforcement of fundamental rights guaranteed to the people of Pakistan under Part II, Chapter I of the 1973 Constitution.

THE CONSTITUIONAL HISTORY OF THE REVIEW ARTICLE:

22.         At this stage, we consider it appropriate to trace and map out the various iterations of the Constitutional articles that vested the highest constitutional Court of Pakistan with the jurisdiction to review its judgements. This is necessary to understand what is review and why this jurisdiction has been conferred on this Court by the framers of all Constitutions of Pakistan.

23.         After independence, Pakistan was governed by the Government of India Act, 1935 (the “1935 Act”). The judicature was governed by Part IX of the Act with Chapter I dealing with the Federal Court (constituted in terms of Section 200 of the 1935 Act). Finality was attached to the Federal Court’s judgements in terms of Section 212 of the 1935 Act. The 1935 Act was silent with respect to the review jurisdiction of the Federal Court. The Federal Court (of India) in 1940 had, prior to independence, dilated upon the proposition as to whether the Federal Court could review its own judgements in the case reported as Raja Prithwi Chand v. Sukhraj Rai (AIR 1941 FC 1). In the said case, the Federal Court held that:

“These are two ex parte applications for a review of judgements delivered by this Court on 18th March last. They are the first applications of the kind which have come before us, and it is desirable that we should state the principles which the Court will take for its guidance in deciding them. This Court will not sit as a Court of appeal from its own decisions, nor will it entertain applications to review on the ground only that one of the parties in the case conceives himself aggrieved by the decision. It would in our opinion be intolerable and most prejudicial to the public interest if cases once decided by this Court could be re-opened and re-heard:

There is a salutary maxim which ought to be observed by all Courts of last resort – interest reipublicae ut sit finis litium. Its strict observance occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this: (1886) 13 AC 660 at p.664.

This Court is not, it is true, a Court of last resort in the sense in which the Judicial Committee or the House of Lords may be so described in the United Kingdom; but it is the highest tribunal sitting in this country and no appeal lies without leave from any decision given by it in the exercise of its appellate jurisdiction … This Court has power under s.214(1), Constitution Act to make rules of Court for regulating generally the practice and procedure of the Court; but it has made no rules for regulating applications for a review of its judgements and in these circumstances it is unnecessary to consider whether its rule-making power is wide enough to enable it to assume a general jurisdiction for that purpose, in the absence of express statutory provisions … If at the present moment it has power to review its own judgements, that power should not, in our opinion, be regarded as more extensive than the power exercised for the same purpose by the Judicial Committee and should be subject to similar restrictions; and we conceive that the rules which govern the practice of the Judicial Committee and of the House of Lords in these matters may rightly be taken as a guide to the practice of this Court also. The practice in England is well settled and of long standing. In (1836) 1 Moo PC 117, Lord Brougham delivering the judgement of the Judicial Committee said:

“It is unquestionably the strict rule, and ought to be distinctly understood as such, that no cases in this Court can be re-heard and that an order once made … is final and cannot be altered. The same is the case of the judgements of the House of Lords … Whatever therefore has been determined in these Courts must stand, there being no power of re-hearing for the purpose of changing the judgment pronounced; nevertheless, if by misprision in embodying the judgements, errors have been introduced, these Courts possess, by Common law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in…”

In (1871) LR 3 PC 664 … the Lord Chancellor (Lord Hatherley) delivering the judgement of the Committee, said:

Having weighed the arguments, and considering the great public mischief which would arise on any doubt thrown on the finality of the decisions of the Judicial Committee, their Lordships are of opinion that expediency requires that the prayer of the petitions should not be acceded to, and that why should be refused with costs.

The general principle remains as it was enunciated a century ago. It is recognised by the Judicial Committee that in certain exceptional circumstances an application for a re-hearing may be entertained, but the cases in which this will be done have not been substantially enlarged since they were explained by Lord Brougham in the passage already cited … The power which we are invited to exercise in these two cases is one to be exercised with extreme caution and only in very exceptional cases; and applications for its exercise will not be encouraged by this Court … Both applications are dismissed; and we think it right to say that future applications of this kind will run the risk of receiving more summary treatment.

(Underlining is ours)

24.         In 1956, Pakistan’s first Constitution (the “1956 Constitution”) was framed by the Constituent Assembly on the 2^nd of March, 1956. The Supreme Court of Pakistan was established by virtue of Article 148. The 1956 Constitution for the first time since Independence expressly empowered the Supreme Court of Pakistan to review its judgements under Article 161. For ease of reference, the said Article is reproduced below:

“The Supreme Court shall have power, subject to the provisions of any Act of Parliament and of any rules made by the Supreme Court, to review any judgment pronounced, or order made, by it.”

In the same year, the Supreme Court, in exercise of its rule-making powers, framed the Supreme Court Rules of 1956 (the “1956 Rules”). Order XXVI of the 1956 Rules governed the review jurisdiction of the Supreme Court. The said order is reproduced for ease of reference:

“Application for review shall be filed with the Registrar within 30 days after judgement is delivered in the cause, appeal or matter, and shall distinctly state the grounds for review and be accompanied by a certificate of counsel that the petitioner has reasonable and proper grounds for review”

It was on the basis of Article 161 read with 1956 Rules that a four-member bench of this Court passed its judgement in Muhammad Amir Khan v. Controller of Estate Duty (PLD 1962 SC 335). In the said case, Mr. Justice Fazle-Akbar (as he was then) in his note while dilating on the meaning and scope of review jurisdiction took the view that:

“…It is therefore, necessary first to consider under what circumstances this Court should exercise its review jurisdiction.

There have been several general statements by highest Judicial Authorities, namely, the House of Lords and the Privy Council on the power of the Court of last resort to review its own decision and as to the extent to which exercise of such power should be limited.

Both the House of Lords and the Privy Council took the view that only in exceptional circumstances they will exercise this inherent power. The cases in which that may be done are explained by Lord Brougham in the case of Rajunder Narain Rao v. Bijai Govind Singh (2 MIA 181). His Lordship describes this privilege, when allowed, not as a right, but as an indulgence. He then says:

“It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of the last resort, where, by some accident, without any blame, the party has not been heard, and an order has been inadvertently made as if the party had been heard.”

In the case of R. N. K. R. M. Somasundaram Chetty v. N. R. M.V. L. Subramanian Chetty (AIR 1926 P C 136), Lord Atkinson remarked:-

“Legal judgments cannot be treated as mere counters in the game of litigation. They are serious pronouncements, for the most part by the judicial officer of the State, touching the rights or disputes of subjects, bringing home to those subjects what the rule of justice required and are enforceable, if need be, by the forces of the State. Moreover, when once pronounced, they cannot be lightly set aside.”

In Henry Hebbert v. The Rev. John Purchas (1869 71 Vol. III L R P C 664), Lord Chancellor says:

“Having carefully weighed the arguments, and considering the great public mischief which would arise on any doubt being thrown on the finality of the decisions of the Judicial Committee, their Lordships are of opinion, that expediency requires that the prayer of the petitions should not be acceded to, and that they should be refused with costs.”

One very cogent observation which appears to me to have been made by the House of Lords in Venkata Narasimha Appa Row v. The Court of Wards ((1886) 11 A C 660) are these:

“There is a salutary maxim which ought to be observed by all Courts of last resort Interest reipublicae ut sit finis litium. Its strict observance my occasionally entail hardship upon Individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this.”

Before Partition, the Federal Court of India in the case of Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai arid others (AIR1941FC1), following the practice of the House of Lords and Judicial Committee declined to entertain applications for review on the ground that the parties were aggrieved by their decision. Following pertinent observations were made in the above case:

“It would in our opinion be intolerable and most prejudicial to the public interest if cases once decided by the Court could be re-opened and re-heard.”

“….with the nature of review jurisdiction and with due regard to the principle that there must be an end to litigation. When a case has been fully heard and a decision given on all available material the party adversely affected by the decision cannot apply for review on the simple ground that it is not satisfied with the correctness of the decision.”

The learned Judge after considering several decisions of the Privy Council and also that of the Federal Court of Pakistan in Akbar Ali v. Iftikhar Ali and others observed:

“In view of what has been stated above it should be clear that there is no analogy between the powers of review of this Court and that of the Federal Court of Pakistan and no assistance can be derived from cases where the power to review was not exercised by that Court.”

The Court then accepted the review petition and granted special leave to appeal to consider whether this Court had not considered a part of the case of the petitioner.

“… No doubt the learned Judge has stated that “there are no fetters at all on the discretion of this Court to grant a review wherever it deems proper to do so for the ends of justice”, but he qualifies the above in the next sentence by the expression that “though of course the discretion will be exercised consistently with the nature of review jurisdiction and with due regard to the principle that there must be an end to litigation.” This decision may be more easily understood if proper emphasis is laid on the last sentence, namely, “with due regard to the principle that there must be an end to litigation”. From the last sentence it is clear that the Court was fully sensible of the importance of maintaining the absolute finality of its decision. It may then be said that in view of the express provisions in the late Constitution this Court has wider power to exercise powers of review than those enjoyed by the Judicial Committee or the House of Lords. To my mind Art.161 of the late Constitution merely gave recognition to the power which since then was exercised by the Courts of last resort in its inherent jurisdiction. It does not, however, mean that this Court has an unfettered discretion to re hear a case which had been conclusively determined by it.

The precedents referred to in the earlier part of the judgment are of great authority, long standing and uniform. The principles laid down by those Courts are based on sound cogent reasons and I do not think it will be wise to depart from that practice. The warnings contained in those observations must not be lost sight of. A liberal use of this power is bound to cause great mischief by throwing doubt on the finality of the decision of this Court. I do not think this Court would be disposed to interfere with the established current of decisions on the question as to the limit to be placed by the Court of last resort on the power of review. I may further add that I know of no authority for the proposition that the Court has unlimited power to re hear and re open a case which has been finally decided.

For the above reasons I am of opinion that the power of review should be exercised within the limits laid down in the case of Akbar Ali v. Iftikhar Ali. In other words “a decision of this Court should be re opened with very greatest hesitation and only in very exceptional circumstances”.

This Court, therefore, may consider the desirability of framing rules prescribing the limits within which it would exercise its power of review.”

Mr. Justice B.Z. Kaikus (as he was then), noted that:

“…I have been given to understand that my judgment in Ilam Din v. Muhammad Din was regarded as granting wide powers of review to this Court and that in consequence a large number of review petitions were filed. This comes to me as a surprise did say in that judgment that Article 161 did not contain any limitations but I had made it clear that limitations are implied in the very nature of review jurisdiction. Let me state now that these limitations are a logical result of the inevitable principle of finality of litigation. It appears quite obvious that if there is to be an end to litigation (and an end there has to be) the mere incorrectness of a conclusion reached can never be a ground for review. If it was, the Court would be bound when an application for review was submitted to consider de nevo whether the conclusion reached was correct and against the order which it passed on the review application, whatever the nature of that order, a review petition could be filed and this procedure will continue ad infinitum. Nor can it be said that while mere incorrectness is not a good ground if the judgment appears to the Bench that hears the review petition to be clearly erroneous there is a ground for review. Difference of opinion in the views of different Benches is but natural and different Benches may be quite clear as to the conflicting views which they take. I could, if need be, quote cases where of two eminent Judges sitting side by side one said the matter was quite simple and admitted of no doubt at all and the other who took the contrary view said he was unable to see how any other view could be taken. To permit a review on the ground of incorrectness would amount to granting the Court the jurisdiction to hear appeals against its own judgments or perhaps a jurisdiction to one Bench of the Court to hear appeals against other Benches; and that surely is not the scope of review jurisdiction. No mistake in a considered conclusion, whatever the extent of that mistake, can be a ground for the exercise of review jurisdiction. On a proper consideration it will be found that the principles underlying the limitations mentioned in Order XLVII, rule 1, Civil Procedure Code, are implicit in the nature of review’ jurisdiction While I would prefer not to accept those limitation as if they placed any technical obstruction in the exercise of the review jurisdiction of this Court I would accept that they embody the principles on which this Court would act in the exercise of such jurisdiction. It is not because a conclusion is wrong but because something obvious has been overlooked, some important aspect of the matter has not been considered, that a review petition will lie. It is a remedy to be used only in exceptional circumstances.

The Chief Justice has referred to Article 163 in support of a conclusion that for doing complete justice between the parties the Court can review a judgment. As I read Article 163 it is intended to state not the circumstances which will enable this Court to pass any order but the kind of order which can be passed. The provision is similar to Order XLI, rule 33, of the Civil Procedure Code, which grants powers to the Appellate Court…

…These are ordinary provisions regarding the powers of an Appellate Court. Such provisions do not enable a Court to exercise jurisdiction in cases where otherwise they could not exercise jurisdiction. They only empower Courts to pass appropriate orders in cases in which they have jurisdiction. Similar is the effect of Article 163. It does not grant jurisdiction to the Court to review cases which it could not otherwise have reviewed. In fact as I have stated above there are limitations which are inherent in the exercise of review jurisdiction. They cannot be got rid of as long as we are consistent…”

Mr. Justice Hamood-ur-Rehman (as he was then) also noted that:

… Having said this, however, I must also point out that, notwithstanding my own personal views in the matter, the question yet remains to be considered as to whether, even assuming that this Court had fallen into error, that would be a sufficient ground for a review in the strict sense. This Court is competent, no doubt, to reconsider a question of law previously decided in a subsequent case but this Court has no jurisdiction to sit on appeal over its own judgments, and although Article 161 of the late Constitution gives it the power to review its decisions in very wide terms that power, as pointed out by this Court in the case of Ilam Din v. Muhammad Din (Civil Petition No. 3 of 1960), will only be exercised “consistently with the nature of review jurisdiction and with due regard to the principle that there must be an end to litigation.” I for my part would be inclined to hold that a review is by its very nature not an appeal or a rehearing merely on the ground that one party or another conceives himself to be dissatisfied with the decision of this Court, but that it should only be granted for some sufficient cause akin to those mentioned in Order XLVII, rule 1 of the Code of Civil Procedure, the provisions whereof incorporate the principles upon which a review was usually granted by Courts of law in England. The indulgence by way of review may no doubt be granted to prevent irremediable injustice being done by a Court of last resort, as where by some inadvertence an Important statutory provision has escaped notice which, if it had been noticed, might materially have affected the judgment of the Court, but in no case should a rehearing be allowed upon merits.

25.         In 1962, another Constitution was framed (the “1962 Constitution”). Chapter 5 of the 1962 Constitution dealt with the Supreme Court of Pakistan. Article 162 conferred review jurisdiction on the Court. A bare reading of the Article reveals that (except for a single modification) it was a facsimile of its 1956 counterpart. The said Article is reproduced for ease of reference:

“The Supreme Court shall have power, subject to the provisions of any Act of the Central Legislature and of any rules made by the Supreme Court, to review any judgment pronounced, or order made, by it.”

When the 1962 Constitution was being framed, the framers of the Constitution were well-aware what they meant by “review”. In Muhammad Amir Khan supra this Court already elaborated what was meant by review and had suggested that the Supreme Court may consider the desirability of framing rules, prescribing the mode, manner and procedure for exercise of such powers.

26.         For the purposes of these Petitions, the present iteration of the review Article is Article 188 of the 1973 Constitution which reads as follows:

“188. Review of judgements of 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.”

The framers of the 1973 Constitution, being aware of the meaning of review, stated that the Supreme Court has the power to review any of its judgements/orders. The framers of the 1973 Constitution were not under any doubt or lack of clarity and knew exactly what review jurisdiction meant i.e. review jurisdiction under Article 188 meant and was clearly intended to mean what is the inherent nature of review jurisdiction as opposed to appeal. They knowingly and deliberately used the word “review” and not “appeal” in Article 188. They were also fully aware of the difference between “review” and “appeal”. Where appellate jurisdiction was intended to be conferred on the Supreme Court, it was clearly so mentioned in Article 185. Hence, the framers of the Constitution deliberately and specifically limited Article 188 to review jurisdiction.

27.         In reading Article 188, Article 191 which empowers the Supreme Court to frame rules may also be kept in mind. The said Article is reproduced below for ease of reference:

“191. Rules of procedure

Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court.”

28.         The rationale for conferring rule making powers on the Supreme Court is a supplement to the foundational tenet of the 1973 Constitution to protect and preserve the complete independence of the Court from the possibility of any interference by other organs of the State. In 1979/1980, the Supreme Court met as a Full Court, comprising of eminent and illustrious judges. They debated and deliberated upon what was meant by review under Article 188. Thereafter, they unanimously framed the “Supreme Court Rules, 1980” as suggested in Lt. Col. Nawabzada Muhammad Amir Khan’s case ibid. While discussing and debating Article 188, and the concept of “review”, they were clear as to what was meant by “review”. Accordingly, when they framed Order 26 Rule 1 of the Supreme Court Rules, 1980, they merely recorded what was meant and all along understood by review in civil and criminal proceedings and for purpose of further clarity made specific reference to Order XLVII, Rule 1 of the Code of Civil Procedure (“CPC”). Order 26(1) of the Supreme Court Rules, 1980 is reproduced below:-

“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 and in a criminal proceeding on the ground of an error apparent on the face of the record.”

29.         What is important to note is that Order 26(1) does not in any manner enhance, restrict or curtail the power of review under Article 188. It only explains, elucidates and states what is meant by the jurisdiction of “review” under Article 188 and prescribes limits within which the Court would exercise such power. The judges of the Supreme Court were well-aware that they could not under the Constitution either enhance or curtail the power of review. If the Judges had considered that review jurisdiction under Article 188 could be anything else they would not have relied upon and specifically mentioned Order XLVII Rule 1 CPC. The Supreme Court was aware that there is only one nature, scope, ambit and meaning of review as used in Article 188 i.e. review means review and nothing more or less. Since then, in every judgement of this Court on the question of review, this Court has consistently decided what is meant by its review jurisdiction under Article 188 its scope, parameters and limits in line with the provisions of Order 26(1) of the 1980 Rules. The view has been consistent and unchanged.

30.         A brief history of the judgments on review is given in the following paragraphs to substantiate the above view:-

(i)    Immediately after the 1962 Constitution, the Supreme Court rendered two judgements namely Rashid Ahmed v. Irshad Ahmed (1968 SCMR 12) and Nawab Bibi v. Hamida Begum (1968 SCMR 104) to the same effect as elaborated in the earlier judgment of Lt. Col. Nawabzada Muhammad Amir Khan v. The Collector of Estate Duty Government of Pakistan, Karachi (PLD 1962 SC 335).

(ii)   In “Yousaf Ali Khan v. The State” (PLD 1971 SC 508), which was also relied upon in Justice Khurshid Anwar Bhinder v. Federation of Pakistan (PLD 2010 SC 483), the scope of review was elaborated.

(iii)  In the next judgement M. Moosa v Muhammad and Others (1975 SCMR 115), it was laid down that if a ground has not been taken while arguing the original case, then such a ground cannot be re-agitated.

(iv)  These cases were followed by the cases of:-

·                    Evacuee Trust Property Board v. Hameed Elahi and another (PLD 1981 SC 108)

·                    Abdul Hamid Saqfi v. Service Tribunal of Pakistan and 22 others (1988 SCMR 1318)

·                    Muhammad Saifullah Khan v. Federation of Pakistan (PLD 1990 SC 79)

·                    State v. Iqbal Ahmed Khan (1996 SCMR 767)

·                    Rafiq Saigol v. Bank of Credit and Commerce International Ltd. (PLD 1997 SC 865)

·                    Ahmed v. The State (2002 SCMR 1611)

31.         A five member Bench of this Court in Abdul Rehman v. Asghar Ali (PLD 1998 SC 363) laid down ten principles when it came to the exercise of review jurisdiction by this Court. These principles were:

“(i) That every judgment pronounced by the Supreme Court is presumed to be a considered, solemn and final decision on all points arising out of the case;

(ii) that if the Court has taken a conscious and deliberate decision on a point of fact or law, a review petition will not lie;

(iii) that the fact the view canvassed in the review petition is more reasonable than the view found favour with the Court in the judgment/order of which review is sought, is not sufficient to sustain a review petition;

(iv) that simpliciter the factum that a material irregularity was committed would not be sufficient to review a judgment/order but if the material irregularity was of such a nature, as to convert the process from being one in aid of justice to a process of injustice, a review petition would lie;

(v) that simpliciter the fact that the conclusion recorded in a judgment/order is wrong does not warrant review of the same but if the conclusion is wrong because something obvious has been overlooked by the Court or it has failed to consider some important aspect of the matter, a review petition would lie;

(vi) that if the error in the judgment/order is so manifest and is floating on the surface, which is so material that had the same been noticed prior to the rendering of the judgment the conclusion would have been different, in such a case a review petition would lie;

(vii) that the power of review cannot be invoked as a routine matter to rehear a case which has already been decided nor change of a counsel would warrant sustaining of a review petition, but the same can be it pressed into service where a glaring omission or patent mistake has crept in earlier by judicial fallibility;

(viii) that the Constitution does not place any restriction on the power of the Supreme Court to review its earlier decisions or even to depart from them nor the doctrine stare decisis will come in its way so long as review is warranted in view of the significant impact on the fundamental rights of citizens or in the interest of public good;

(ix) that the Court is competent to review its judgment/order suo motu without any formal application;

(x) that under the Supreme Court Rules, it sits in divisions and not as a whole. Each Bench whether small or large exercises the same power vested in the Supreme Court and decisions rendered by the Benches irrespective of their size are decisions of the Court having the same binding nature.”

(Underlining is ours)

32.         In Tahir Hussain v. The State (2005 SCMR 330) (in para 3 at page 331), the Supreme Court held as follows: –

“3. We have given our anxious thought to the contentions of the learned counsel for the petitioner and have gone through the referred Hadith and case law. As regards the impugned judgment, learned counsel could not refer to even a single error apparent on the face of record necessitating the review of impugned judgment. The entire arguments advanced by him were made on the judgment of the Federal Shariat Court which is not under review before us, as such, entire submissions being out of context cannot be taken into consideration. Even otherwise, all these contentions were raised at the time of hearing of main appeal which were elaborately dealt with and discussed in the impugned judgment. The scope of review is limited and it does not allow re hearing, re appraisal or appreciation of evidence afresh.”

33.         In Sh. Mehdi Hassan vs Province of Punjab (2007 SCMR 755) (in para 8 at page 758), the Hon’ble Supreme Court decided that: –

“8. We having heard the learned counsel for the parties at length and perused the record with their assistance have found that the contentions raised by the learned counsel in support of this petition have been exhaustively dealt with in the judgment under review. This is settled law that the points already raised and considered before the Court, cannot be re-agitated in review jurisdiction which is confined to the extent of patent error or a mistake floating on the face of record which if not corrected may perpetuate illegality and injustice. The mere fact that another view of the matter was possible or the conclusion drawn in the judgment was wrong, would not be a valid ground to review the judgment unless it is shown that the Court has failed to consider an important question of law. The learned counsel has not been able to point out any such error of law in the judgment or interference in the review jurisdiction.”

34.         Reference may also be made to Majid Mahmood Vs. Muhammad Shafi (2008 SCMR 554), paras 5, 7, 8 and the following portion at page 557: –

“5. …All the points agitated while arguing the review petitions have been dilated upon and decided after going through entire record with care and caution. From whatever angle the matter may be examined, no case of review is made out. This is settled law that the case cannot be reopened on merits in review. Scope of review is very limited and review petition is not maintainable on those points which have been decided one way or the other. Moreover any dispute which has already been resolved cannot be reviewed, even if the same has been resolved illegally. In Allah Ditta and others v. Mehrban and others 1992 SCR 145, it has been observed that “even otherwise the mere incorrectness of a decision on a particular issue or a question falling for determination in a case can never be a ground for review as to permit a review on the ground of such incorrectness would amount to granting the Court a jurisdiction to hear appeal against its own judgment. The review of the judgment cannot be allowed merely on the ground that a party to it conceives himself to be dissatisfied with the decision made therein.

7.     It is settled proposition of law that the review cannot be allowed to reopen the case for the purpose of affording rehearing of the points already resolved. In Sh. Mehdi Hassan v. Province of Punjab through Member, Board of Revenue and 5 others 2007 SCMR 755 this Court has observed that “this is settled law that the points already raised and considered before the Court, cannot be re-agitated in review jurisdiction which is confined to the extent of patent error or a mistake floating on the face of record which if not corrected may perpetuate illegality and injustice. The mere fact that another view of the matter was possible or the conclusion drawn in the judgment was wrong, would not be a valid ground to review the judgment unless it is shown that the Court has failed to consider an important question of law.

8.     The exercise of review jurisdiction does not mean a rehearing of the matter and as finality attaches to the order, a decision, even though it is erroneous per se, would not be a ground to justify its review. Accordingly, in keeping with the limits of the review jurisdiction, it is futile to reconsider the submissions, which converge on the merits of the decision. It needs no reiteration that before an error can be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest, so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self evident and floating on the surface and does not require any elaborate discussion or process of rationcination. It is not denied that if the Court has taken a conscious and deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or order cannot be obtained on the grounds that the Court took an erroneous view or that another view on reconsideration is possible. Review also cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced. The contentions of learned counsel for the petitioner as rightly urged, are nothing but reiteration of the same grounds, which were urged at the hearing of appeals, but were rejected by this Court after consideration. These contentions cannot be allowed to be raised again in review proceedings as in the garb of proceedings for review, the petitioner cannot obtain rehearing of the appeals.”

In the same year in “Mirza Shahjehan Haider Gorgani Versus Chairman, Federal Land Commission, Islamabad” (2008 SCMR 575) in para 5 at page 578, the Supreme Court held that if a ground has not been taken then it cannot be re-agitated as review is not an appeal. These were followed by “Sultan through L.R.s Versus Said Khan” (2008 SCMR 562) and Mehmood Hussain LARK Versus Muslim Commercial Bank Limited (2010 SCMR 1036). In “Ghulam Murtaza vs. Abdul Salam Shah” (2010 SCMR 1883), in paras 4 and 5 at pages 1885 and 1886, the Supreme Court held as follows:-

“4: We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. The memo of revision petition before the High Court, memo of petition before this Court, leave granting order dated 18-4-2003, arguments raised by the learned counsel for the appellant on 13-2-2007 mentioned in para. 2 of the impugned judgment and the grounds urged by him on 17-1-2008 clearly envisage that the grounds on the basis of which notice was issued to the respondents were not raised and taken before this Court. It is settled principle of law that parties are bound of their pleadings. See Murad Begum’s case (PLD 1974 SC 322). It is also settled principle of law that even fresh point/plea is generally not allowed by this Court to raise during the arguments of the petition and appeal and fresh pleas cannot be allowed to raise during the arguments of the review petition as law laid down in the following judgments:

(i) Ishfaqur Rehman’s case (PLD 1971 SC 766)

(ii) John E Brownlee’s case (AIR 1940 P.C. 219).”

“Paragraph 5: It is well-settled proposition of law that every judgment pronounced by this Court is presumed to be considered solemn, and final decision on all points arising out of the case. If the Court has taken a conscious and deliberate decision on a point of fact or law a review, petition will not be competent. It is also settled principle of law that a “review petition” not competent where neither new and important evident error has been described nor any error apparent on the face of record. Such error may be error of question of law or fact but the condition precedent is that it must be self-evident floating on the surface and not requiring elaborate discussion or process of ratiocination. It is also settled proposition of law that the review is not meant for re-hearing of the matter. As mentioned above scope of the review is always very limited and confined to the basic aspect of the case referred to at review stage which was considered in judgment but if the grounds taken in support of the petition were considered in the judgment and decided on merits, the same would not be available for review in the form of re-examination of the case on merits. The aforesaid principles are supported by the following judgments of this Court:

(i)                Abdul Majeed’s case (1980 SCMR 504)

(ii)              Mst. Kalsoom Malik’s case (1996 SCMR 710)

(iii)            Noor Hassan Awan (2001 SCMR 367)

(iv)             Ayyaz Baig’s case (2002 SCMR 380)

(v)               Daewoo Corporation’s case (2004 SCMR 1213)

(vi)             Muhammad Afzal’s case (2004 SCMR 1348)

(vii)           M/s. PIA’s case (2004 SCMR 1737)

(viii)         Sh. Muhammad Amjad’s case (PLD 2004 SC 32)

(ix)             Syed Wajihul Hassan Zaidi’s case (PLD 2004 SC 801).”

35.         An elaborate discussion on review jurisdiction of this Court can also be found in Justice Khurshid Anwar Bhinder v. Federation of Pakistan (PLD 2010 SC 483). In the said matter, an argument was also made (as was done by the learned Attorney General before us) that the review jurisdiction against an order passed under Article 184 should be expanded and it be considered akin to an appeal. The Court categorically rejected this argument. This principle was reaffirmed in the case of Iqbal Pervaiz vs.Harsan (2018 SCMR 359).

36.         The conclusions which can be drawn from the above cited case law are as follows: –

(i)     Review jurisdiction is well-known in jurisprudence;

(ii)    It is attached with the concept of “finality” of the judgements of the apex Court i.e. the judgements of the Supreme Court are final and can only be re-opened on limited grounds of review;

(iii)   To give sanctity to the concept of “finality”, the Court only exercises power of review and does not rehear the case by sitting in appeal over its judgements and orders;

(iv)   The scope of review is well-defined in Order 47 Rule 1 CPC in civil cases and this is what review is;

(v)    The Supreme Court described what is meant by the “review jurisdiction” in “Lt. Col. Nawabzada Muhammad Amir Khan vs. The Controller of Estate Duty” (PLD 1962 SC 335) and the framers of the 1973 Constitution consciously and deliberately adopted this meaning;

(vi)   The framers of the 1973 Constitution were not under any misconception, were conscious and aware of the fact that review jurisdiction could not be expanded or equated to appeal, and knowingly used the word “review” and not “appeal” in Article 188 (just as the framers of the Constitution in 1956 and 1962 had also specifically used the word “review” and not “appeal”);

(vii)  In “Lt. Col. Nawabzada Muhammad Amir Khan’s case ibid, the Hon’ble Judges stated that Supreme Court should frame rules to regulate its review jurisdiction. The matter was considered by the Full Court in 1980, and after full deliberation Order 26(1) was framed, which clearly and unambiguously states what review jurisdiction is;

(viii) It is not possible to attribute to the authors of the Constitution that they were unaware of what review meant nor it is possible to attribute lack of knowledge of law to the judges who framed the Supreme Court Rules, 1980 that they did not appreciate the difference between review and appeal;

(ix) The Supreme Court, consisting of eminent Judges in 1980 and thereafter, were well-aware that they could not expand or restrict the scope of review under Article 188. If they had considered that the review jurisdiction under Article 188 could be “expanded” to appellate jurisdiction, then they would not have restricted this power to the one contained in Order 47(1) CPC;

(x)    It is clear that Order 26 of the Supreme Court Rules, 1980 is an explanation and elucidation of the meaning of “review jurisdiction” and does not expand or restrict it;

(xi)   Since 1980, the Supreme Court has always been aware that there is only one nature, scope, ambit and meaning of review as used in Article 188 i.e. review jurisdiction means review jurisdiction and nothing more or less. It is therefore, wholly fallacious to suggest that review jurisdiction under Article 188 can be equated with appeal or can be expanded or restricted in any manner;

(xii)  To suggest that the scope of “review” under Article 188 is or can be the same as “appeal”, is also wholly incorrect as it assumes that when the framers of the Constitution stated that the Supreme Court can review its judgement and orders, they did not know the scope of “review” and actually meant “appeal”;

(xiii) The Constitution makers were well-aware of the concept of “appeal” and when appellate jurisdiction was to be conferred upon the Supreme Court, it was clearly so mentioned in Article 185;

(xiv) The framers of the Constitution deliberately did not use the word “appeal” in Article 188 but specifically limited it to “review” jurisdiction; and

37.         This constitutional, legal and jurisdictional landscape continued until the enactment of the 2023 Act, ostensibly passed under the authority vested in Parliament under Article 188 read with Article 191 of the 1973 Constitution. It goes without saying that in view of Article 189 of the 1973 Constitution, the judgments of this Court discussed above defining the constitutional parameters of review jurisdiction under Article 188, are binding precedents and leave no room for ambiguity. It is quite clear to us that the Parliament believed that the power of review as used in Article 188 is the same which is well-known in our settled jurisprudence whereby a review cannot be equated with an appeal. This is the reason why the Act states that the scope of review, on both facts and law, shall be the same as an appeal under Article 185 of the Constitution. If Parliament had believed that the scope of review under Article 188 was the same as that of appeal under Article 185, there would be no need to promulgate the Act. The question which needs to be examined is whether the legislature can, by way of ordinary legislation, override the rules framed by the Supreme Court of Pakistan in exercise of express powers available to it under Article 188 of the 1973 Constitution and overturn consistent judicial pronouncements embodying the contours and limits of Article 188 of the 1973 Constitution and in doing so, for all intents and purposes, create a right of appeal by indirectly amending Article 188 of the Constitution through ordinary legislation?

THE 2023 ACT:

38.         In order to answer the above question, having traced the history of review jurisdiction and the jurisprudence spanning over many decades, we may now advert to the 2023 Act itself.

39.         In our current constitutional dispensation, the legislature legislates, the executive implements the law and the judicial branch interprets laws and the Constitution which inter alia includes the power to examine the vires of a law or any provision thereof on the touchstone of the Constitution.

COMPETENCE OF THE PARLIAMENT WITH RESPECT TO ENACTMENT OF THE 2023 ACT:

40.         The Majlis-e-Shoora (Parliament) derives its existence from Chapter 2 of the 1973 Constitution, its procedure for legislative business from Articles 70 to 77 and its legislative competence from Article 141. Presuming that a Bill has gone through the rigours of the relevant Articles depending on its nature and has been passed by the Parliament and is assented to by the President of Pakistan in terms of Article 75, it becomes law and is called an Act of the Majlis-e-Shoora (Parliament) itself.

41.         Under Article 142(a), the Parliament, subject to the Constitution, “shall have exclusive power to make laws with respect to any matter in the Federal Legislative List.” The Federal Legislative List is found in the Fourth Schedule to the Constitution. For the purposes of these Petitions, the relevant Entry in the Fourth Schedule is Entry No.55. The said Entry is reproduced hereunder for ease of reference:

“55. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List and, to such extent as is expressly authorised by or under the Constitution, the enlargement of the jurisdiction of the Supreme Court, and the conferring thereon of supplemental powers.”

(Underlining is ours)

42.         The first limb of the Entry is straightforward. Parliament cannot legislate regarding any matter relating to jurisdiction and powers of the Supreme Court. It is the second limb which states that Parliament can legislate on the enlargement of the jurisdiction of the Supreme Court and the conferring thereon of supplemental powers as is expressly authorized by or under the Constitution. At first glance, it may (if seen in isolation and read out of context) appear that Parliament may be competent to legislate and pass the 2023 Act since the said Entry read with Article 188 appears to subject the review jurisdiction of this Court to an Act of Parliament. However, a closer look at the extent, scope and constitutional implications of the 2023 Act paints a totally different picture. What the legislature has failed to realise is that the authority to legislate with respect to the review jurisdiction of Article 188 is circumscribed by other Articles of the Constitution and the scheme of the Constitution ensuring independence of judiciary. Further, the scope to frame rules under Article 191 to regulate its practice and procedure vests in the Supreme Court. The Supreme Court, cognisant of the need to structure the said jurisdiction and in exercise of its powers under Article 191 had already embarked upon and completed that exercise as far back as 1980 when it framed the 1980 Rules. These Rules and Article 188 became the subject of judicial precedent when this Court rendered a plethora of judgements discussed above whereby this Court clearly enunciated a constitutional point of law with respect to Article 188. Where such rule-making power has been exercised, any legislation by placing reliance on Entry No.55 under the garb of “enlargement of jurisdiction of the Supreme Court”, is indisputably an intrusion in the independence of the judiciary, specifically so where a right of appeal is sought to be provided when none exists in the Constitution. Since this Court derives its review jurisdiction from Article 188 (and structures such jurisdiction by way of the 1980 Rules), Parliament cannot, by way of ordinary legislation, render the 1980 Rules, framed, reiterated, followed, acted upon and sanctioned in judicial pronouncements of this Court, null and void through ordinary legislation. The said Rules have been framed in exercise of an independent Constitutional power keeping in mind a fundamentally important feature of the Constitution namely independence of judiciary and cannot be changed, modified, or overridden by ordinary legislation. Further, there is no “express authorization” anywhere in the Constitution empowering the Parliament to “enlarge” the review jurisdiction of the Supreme Court under Article 188 of the Constitution. In addition, the 2023 Act does not “enlarge” review jurisdiction, it “creates” a new appellate jurisdiction which has no constitutional basis, sanction or authorization. Therefore, any attempt by way of ordinary legislation to interfere in the scope of its powers and jurisdiction including but not limited to its review jurisdiction would constitute a wrong and erroneous reading and interpretation of the Constitution. There can be no two opinions that the power to interpret the Constitution vests exclusively with the Supreme Court of Pakistan. The 2023 Act appears to be an overt and glaring intrusion in the independence of the judiciary, which is a grund-norm of our constitutional scheme and has been vigorously, resolutely, and robustly guarded by the framers of the 1973 Constitution as is evident from various provisions of the 1973 Constitution. The very preamble of the 1973 Constitution categorically states: “… the independence of the judiciary shall be fully secured”. Any legislation interfering with the independence of the judiciary, would by its nature and from its very inception, be unconstitutional, null, void and of no legal effect.

43.         If the review jurisdiction, as stated in Article 188, has to be converted into an appellate jurisdiction, it may and subject to its harmony with other provisions of the Constitution and the well recognized rule of finality only be done through a Constitutional amendment and not through ordinary legislation. It is a well-recognized principle that ordinary law cannot amend, change, delete or add to the Constitution. The effect of Section 2 is that under Article 188, instead of the Supreme Court exercising review jurisdiction as provided therein, it is to exercise another and newly created jurisdiction, namely an appellate jurisdiction to be termed as “Review”. This amounts to amending Article 188 under the garb of enlarging the scope of review. Section 2 of the 2023 Act provides that a review petition under Article 188 will be treated as an appeal under Article 185. A review remains a review and cannot be changed to an appeal otherwise it does not remain a review. Section 2 purports to change the inherent nature of review. Further, Article 188 provides for a review in all cases, whereas Section 2 purports to carve out an appeal by stating that review mentioned in Article 188 shall in case of judgments and orders passed under Article 184(3) be an appeal. There is therefore a clear and irreconcilable conflict between Article 188 and Section 2 ibid. There can be no two views in concluding that in case of a conflict between a Constitutional provision and the law, the Constitution prevails and the law is liable to be struck down.

44.         Without prejudice and in addition to what has been stated above, Section 2 of the 2023 Act for all intents and purposes provides that review jurisdiction is to be treated as appellate jurisdiction (as far as orders passed under Article 184(3) are concerned). This is certainly not an “enlargement” of review jurisdiction but a complete change of the same and hence, beyond the competence of the Parliament. The meaning of the phrase “subject to Act of [Majlis-e-Shoora (Parliament)]” in Article 188, cannot be, that by such Act, the very nature of review can be altered and replaced by an appeal. If “subject to the Act of [Majlise-Shoora (Parliament)]” were to mean that a Constitutional provision could be changed or modified by ordinary law then that would mean that even the fundamental rights could be denied and other Articles of the Constitution could be amended through ordinary legislation.

45.         We therefore find that, in the instant matter, Parliament was not competent to legislate with respect to Article 188 in the manner that it has done by way of the 2023 Act. Where such rule making power has been exercised by the Court, any legislation by placing reliance on Entry 55 under the garb of “enlargement of jurisdiction of the Supreme Court” is indisputably unconstitutional and an intrusion in the independence of the judiciary specifically so where a right of appeal is sought to be provided when none has been provided by the Constitution. The so-called “enlargement” has no constitutional sanction or basis and is not anchored in any provision of the 1973 Constitution relating to the judicature or the Supreme Court of Pakistan.

46.         We also note that Section 2 conflates Appellate jurisdiction of the Supreme Court with that of review jurisdiction under Article 188 and thereby renders Article 188 to the extent of orders/judgments passed under Article 184(3) redundant by providing an appeal for all intents and purposes under the facade of review. This appears to be an attempt to remodel the Constitutional scheme relating to judicature and potentially opening the door for diminishing, undermining and eroding the power and jurisdiction of the apex court of the country. Under the Constitution, orders and judgements passed by the Supreme Court under Article 184(3) are final except to the limited extent that the same may be subject to review jurisdiction under Article 188. Section 2 by providing an appeal on facts and law against the judgements and orders passed under Article 184(3), reduces rather than enlarges the jurisdiction of the Supreme Court under Article 184(3) since such judgements and orders are now subject to a rehearing and re-appraisal by a larger bench hearing the review as an appeal thereby destroying the finality of such judgments or orders. It may be noted that looked at from another angle, an “expansion” of review jurisdiction and converting it into an appeal would necessitate amending various Constitutional Articles (including Articles 184(3), 185 and 188) as well as modification of the 1980 Rules. The 2023 Act alone, and by itself, cannot alter, modify or amend Constitutional provisions without adhering to the mandatory requirements set forth in Articles 238, 239 and 269 of the 1973 Constitution.

47.         If there was any doubt in anybody’s mind (there is none in ours) that the real purpose of the 2023 Act is to provide for an appeal against judgements and orders passed by this Court in exercise of its power under Article 184(3) of the 1973 Constitution (where the Constitution does not provide for an appeal), Section 3 of the 2023 Act should be enough to unravel the thin veil of trying to “facilitate and strengthen the power [of review]” and “enlarge jurisdiction of the Supreme Court”. By providing in Section 2 that “… the scope of review on both facts and law shall be the same as an appeal under Article 185 of the Constitution” and supplementing it by stating (in Section 3) that the review petition shall be heard by a Bench larger than the Bench which passed the original judgement or order, it has been ensured in the 2023 Act that:

i)      The “review” will be heard by a larger bench, which may or may not consist of the members of the bench that passed the original order/judgement. The “review” bench will surely include judges who had not heard the matter earlier. This would necessitate rehearing of the entire case on both facts and law. Further, if the original judgment/order under Article 184(3) of the Constitution was passed by a full Court, how would a larger Bench be constituted? Would that mean that there would be no power of review against such order/judgment?

ii)     Regardless and without prejudice to the above, the “review” bench of the Supreme Court would, for all intents and purposes, sit in appeal over a judgement of the Supreme Court irrespective of the number of Hon’ble Judges who sat on a Bench that heard the matter under Article 184(3) of the Constitution. There is no provision in the Constitution providing for the Supreme Court to sit in appeal over its own judgements passed in exercise of powers under Article 184(3) of the 1973 Constitution.

(iii)   Further, providing for appointment of a counsel of choice (Section 4) who may or may not be the counsel who appeared and argued the matter in the first place, the basic concept of review, as incorporated in Order XXVI of the 1980 Rules has been discarded. The purpose behind the rule that the same counsel who argued the matter in the first place may file and argue a review petition is that he is fully conversant with what he had argued, which grounds were pressed and which were given up. A new counsel being unaware of such details would obviously re-argue the entire matter on questions of law as well as facts which is contrary to the basic concept of review.

(iv)   To allow a party to substitute its counsel in the review proceedings and to raise new points of facts and law would be tantamount to allowing litigants to get another shot at overturning a judgement of this Court not to mention offend the principles laid down by this Court relating to finality attached to the judgements of this Court. A larger bench, possibly a new lawyer and hearing of “review” petition both on facts and law begs the question, what else is an appeal?

48.         It may further be noted with reference to Section 3 that review petitions are not petitions seeking leave to appeal in terms of Article 185(3), they are dealt with Order XIII and XVII of the 1980 Rules. Once all the formalities prescribed in the Rules are met, the matter is placed before a Bench constituted by the Chief Justice of Pakistan in terms of Order XI of the 1980 Rules. The question whether the legislature can enact a law on the subject of the constitution of benches has to be answered in the negative for the reason that a five-member bench of this Court, in SMC No.4 of 2021 (PLD 2022 SC 306 @ para 33), has already held that:

“ … it is settled law that it is the Chief Justice alone who is the master of the roster and who, from time to time, constitutes Benches for the exercise of the various jurisdictions of the Court. This applies (to take the language of Order XI of the 1980 Rules) to “every cause, appeal or matter” to be heard and disposed of by the Court …”.

49.         Since this Court has declared that under the 1980 Rules, it is the sole prerogative of the Chief Justice of Pakistan to constitute Benches, to fix the number of Judges who constitute the said Benches, it would veer towards irrationality to hold that while the original exercise and invocation of jurisdiction under Article 184(3) is the sole prerogative of the Chief Justice under the 1980 Rules, the legislature has the authority to supersede the Chief Justice and enact a law taking away the prerogative of the Chief Justice of nominating and fixing the number Judges to hear a review petition. The power to constitute benches has always vested with the judicial branch of the State and to suggest that the legislature can legislate on the issue of the mode and manner of composition and strength of benches to hear certain matters (in this case review petitions), would be a gross intrusion and incursion in judicial exercise of powers under the Constitution. Therefore, the said Section violates the express command of the 1973 Constitution. We also find that Sections 2 and 3 of the 2023 Act go against the basic principle of separation of powers and offend against inter alia Articles 175(2), 175(3), 184(3), 185 and 188 of the 1973 Constitution by unduly intruding into and interfering with the independence of the judiciary, and therefore, diminish the mandate of this Court to protect and enforce the fundamental rights of the people of Pakistan.

50.         The learned Attorney General as well as Mr. Sajeel Swati submitted that this Court may read down the provisions of the Act if it finds the Act in its present form to be ultra vires the Constitution. We have carefully considered the said argument but find it to be misconceived. Reading down is a well-known concept but cannot be used to amend legislation. Unfortunately, there is no constitutionally acceptable way of reading down the provisions of the Act which provides in unambiguous words that the scope of review on both, facts and law, shall be same as an appeal and provides ancillary provisions to buttress the scheme of the Act. Any purported “reading down” would not change or cure the inherent and fundamental flaw in the Act that the scope of review under Article 188 has been converted into an appeal through ordinary legislation.

51.         We have also gone through the judgements relied upon by the learned Attorney General for Pakistan. We find that firstly the judgements cited before us do not state that the review jurisdiction under the relevant Article of the Indian Constitution is the same as appellate jurisdiction or can be equated with it or expanded to become an appellate jurisdiction. Secondly, the judgement of the Indian Supreme Court in Indian Young Lawyers Association and Rupa Ashok Hurra ibid is inconclusive and not relevant to the case in hand for the proposition being advanced. The main question before the Indian Supreme Court in the Indian Young Lawyers Association ibid was whether or not the matter before it should be referred to a Full Bench. The rest of the observations are obiter dicta. Thirdly, with all due respect, the rationale and logic of the obiter dicta is in a different context and on the basis of a different constitutional dispensation. It has therefore not been found by us to be of any persuasive value in the facts and circumstances of the lis before us. Fourthly, in any case, the jurisprudence of Pakistan as established through exhaustive judgements relating to review jurisdiction is so clear and unambiguous that any decision of Courts of foreign jurisdictions which exist and function under different constitutional and legal dispensations cannot have the effect of changing our jurisprudence. Fifthly, the judgements of the Indian Supreme Court cited and relied upon by the learned Attorney General do not propose any test or criteria on the scope of expansion of review jurisdiction. What the Indian Supreme Court is certainly not saying is that review jurisdiction means that it can be equated with an appeal. On the other hand, a plain reading of Section 2 of the 2023 Act leaves us in no manner of doubt that it means and intends, in no uncertain terms, to convert a review under Article 188 into an appeal under Article 185 of the Constitution on facts and law by virtually amending Article 188 of the Constitution read with the 1980 Rules which cannot be done under the Constitution.

52.         It has also been argued by the learned Attorney General as well as Mr. Swati that under Article 187, the Supreme Court has the power to do complete justice. The argument appears to be that somehow the 2023 Act can be validated because the Supreme Court has the power to do complete justice under Article 187. With all due respect, we are unable to agree. Firstly, because the Act has been challenged on the ground that Parliament does not have the competence to amend the Constitution and, hence, the powers that the Supreme Court has under Article 187 of the Constitution, have no bearing on the question of competence of the Parliament to amend the Constitution under the garb of expanding the scope of review through ordinary legislation. Secondly, in any case, Article 187 is not an Article which confers jurisdiction on the Supreme Court, the Supreme Court can exercise powers under Article 187 in a case or matter pending before it once the Court has competently assumed jurisdiction. In order to understand the scope of Article 187, it is relevant to elaborate the difference between “jurisdiction” and “power”. Jurisdiction of a Court is a well-understood concept which means the capacity of a court to decide a dispute arising before it. On the other hand, the “power of the Court” means the actions which a Court may take i.e. the judgement or order it may pass after assuming jurisdiction. While the Supreme Court has jurisdiction under Articles 184, 185, 186 and 188, Article 187 confers the power to do complete justice. It is not a jurisdiction. As far back as 1962 in the case of Lt. Col. Nawabzada Muhammad Amir Khan vs. The Controller of Estate Duty (PLD 1962 SC 335), the Judges of the Supreme Court held that the power to do complete justice (the then Article 163 of the Constitution) does not “enable a court to exercise jurisdiction in cases where otherwise they could not exercise jurisdiction”……It does not grant jurisdiction to the Court to review cases which it could not otherwise have reviewed…..these limitations…..are inherent in the exercise of review jurisdiction…..”. The Court also emphasized the words “in any case or matter pending before it” as used in Article 187 to state that the case has to be first competently filed and only thereafter the power under Article 187 can be used for doing complete justice. In the original 1973 Constitution, Article 187 did not contain the words “subject to clause (2) of Article 175”. These words were inserted vide Constitutional Amendment No.5 on 13/09/1976. In the case of Ch. Zahur Elahi Vs. The State (PLD 1977 SC 273), there were some observations relating to Article 187 being relatable to the jurisdiction of the Supreme Court which necessitated Constitutional Amendment No.5 on 13/09/1976 under which the words “subject to Clause (2) of Article 175” were inserted. In the case of Pir Sabir Shah vs. Shad Muhammad Khan (PLD 1995 SC 66), Ajmal Mian, J (as he then was) noted as follows:

“26. On the other hand, Mr. Khalid Anwer has drawn our attention to Article 175 of the Constitution which deals with the establishment and jurisdiction of the Supreme Court and the High Courts in the Provinces and clause (2) of which provides that “No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law”. He has further pointed out that original clause (1) of Article 187 did not contain the words “Subject to clause (2) of Article 175; but they were added by the Constitution (Fifth Amendment) Act, 1976) (Act LXII of 197) with effect from 13-9-1976. After the decision in the case of Ch. Zahur Ilahi, M.N.A. v. The State PLD 1977 SC 273, which was rendered on 15-7-1976 and in which it was held that under Articles 199 and 187 of the Constitution, the superior Courts while exercising their Constitutional jurisdiction had the power to set aside actions taken or orders passed by Executive Authorities notwithstanding finality conferred by Special defence laws as the Constitution overrides all the laws including defence laws. The petitioner was granted bail in exercise of the power contained in clause (1) of Article 187 of the Constitution by this Court. It may be advantageous to reproduce from the opinion of Muhammad Afzal Cheema, J, the following observation on the above question:–

“Considering the entire position in the background explained above, the conclusion I have reached is that prima facie reasonable grounds appear to exist to give rise to the belief that the allegations of mala fide may not be untrue. It is nothing but the expression of a tentative view analogous to the opinion of the Court which it is called upon to express at the pre-trial stage in bail matters under section 497, Cr.P.C. I am in respectful agreement with my learned brother Salahuddin Ahmed, J. that this prima facie finding would be good enough to justify the grant of interim bail to the petitioner, and that it was wrongly denied to him by the High Court. I also respectfully endorse the following observation of his Lordship in Manzoor Ilahi v. Federation of Pakistan P L D 1975 SC 66 wherein incidentally also the detention of the present petitioner was challenged by his brother, when the liberty of a person is involved a High Court can exercise its jurisdiction under Article 199 of the Constitution and grant him relief even though he has misconceived his remedy and came up with an application under sections 498 and 561-A of the Criminal Procedure Code’. I am also of the view that in the circumstances of the case, this Court would be competent to allow bail to the petitioner in legitimate exercise of its Constitutional jurisdiction under Article 187 of the Constitution. The provision reads as follows:–

(187).–(1) The Supreme Court shall have power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document.’

Doing complete justice is indeed a very comprehensive term and in my humble opinion means doing real and substantial justice without being fettered by legal formalism, so that the paramount interests of justice are not allowed to be sacrificed at the altar of mere technicalities. It is to safeguard these interests that the Constitution has conferred vast discretionary powers on the Supreme Court which is on the apex of the judicial hierarchy and the Court of last resort. This view finds support from the following observation made by Hamoodur Rahman, C.J. in Noora’s case PLD 1973 SC 469.

“27. There is no doubt that in none of the above cases cited by Mr. Syed Sharifuddin Pirzada, the above amendment made in Article 187(1) of the Constitution with effect from 13-9-1976, was noticed. The effect of the above amendment seems to be that the provision of clause (1) of Article 187 can be pressed into service subject to clause (2) of Article 175 of the Constitution. In other words, the Supreme Court shall have no jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. To put it differently clause (1) of Article 187 itself does not confer any jurisdiction on the Supreme Court but it provides a provision whereby the Supreme Court can exercise its jurisdiction conferred by the Constitution or by any other law more effectively by issuing such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it and in doing so the Supreme Court will not be fettered with technicalities which may result in miscarriage of justice. It may be pointed out that – there is no similar amendment made in Article 210(2) of the Indian Constitution and, therefore, the decisions of the Courts of Indian jurisdiction will not be relevant for the purpose of construing clause (1) of Article 187 of the Constitution after 13-9-1976…”

Reference may also be made to the following remarks made by:-

(i)     Justice Sajjad Ali Shah (paras 14, 17, 19, 20, 21 and 22) in which it held that Article 187 does not confer any jurisdiction. It recognizes inherent powers of the apex Court to do complete justice.

(ii)    Saleem Akhtar, J (in paras 9 and 10) in which he held that the Court can decide questions of vires of the act while doing complete justice but the Court will not cross the frontiers of Constitutional law. It was further held that the Court can grant ancillary relief and mould the relief within its jurisdiction depending upon the facts and circumstances of the case. However, Article 187 does not confer any jurisdiction. It recognizes the inherent power of this apex Court to do complete justice.

53.         Mehr Zulfiqar Ali Babu Vs. Government of Punjab (PLD 1997 SC 11) was a case which was filed under Article 184(3). In this case no violation of fundamental rights was alleged hence the petition under Article 184(3) was not maintainable. The question before the Court was “Can a relief be given under Article 187 directly?” In para 9A, this Court held that no independent proceedings can be initiated under Article 187. However, once it is seized of a lis competently under the relevant law, its power to grant applicable relief is not controlled by the technicality of the proceedings. The Court held that the key words were “pending” which meant competently brought before the Court. Article 187 can be pressed into service only in a matter which is competently filed before the Court but it does not give an independent right to initiate proceedings of the nature in question. In Dossani Travels Pvt. Ltd and others vs. Travels Shop (PLD 2014 SC 1), it was held that Article 187 was an enabling provision which could be invoked if the matter was competently filed. Reliance in this case was placed on Hitachi Limited vs. Rupali Polyester and others (1998 SCMR 1618). In WAPDA vs. Saadullah Khan (1999 SCMR 319), it was held that Article 187 was controlled by Article 175(2) of the Constitution. Reference may also be made to Saeed Akhtar vs. The State (2000 SCMR 383) and Munir A. Sheikh vs. Khursheed Ismail (2000 SCMR 456).

54.         In view of the aforenoted legal position, the argument that the power of this Court under Article 187 can be resorted to in order to save and protect the 2023 Act is found to be misconceived and is accordingly repelled.

55.         With respect to Sections 5, we note that the purpose behind the said section is to allow those who may be aggrieved by a judgement rendered by this Court with respect to any order passed in exercise of jurisdiction conferred under Article 184(3) to file a review petition on both facts and law, the scope of which shall be the same as an appeal under Article 185 of the Constitution. Besides and in addition to other reasons including our finding that the 2023 Act in effect purports to amend the Constitution, the effect of the said Section would be to open a floodgate of litigation and to allow filing of review petitions irrespective of the date when the order complained against had been passed. This would be notwithstanding the fact that such order had become a past and closed transaction by reason of expiry of the period of limitation to file a review petition under Article 188 read with the 1980 Rules. It goes without saying that the threshold, requirement and scope under Article 188 in terms of the criterion laid down by this Court in the 1980 Rules rests on a higher pedestal than ordinary legislation. In the judgement reported as Justice Khurshid Anwar Bhinder vs. Pakistan (PLD 2010 SC 483) this Court has already in categoric terms, held that:

“37. … a line of distinction is to be drawn between statutory rules made by the executive pursuant to an Act or an Ordinance and statutory rules made by the Supreme Court pursuant to the mandate of Constitution as conferred upon it under Article 188 of the Constitution. In the former case we are mindful of the fact that “statutory rule cannot enlarge the scope of the section under which it is framed and if a rule goes beyond what the section contemplates, the rule must yield to the statute. The authority of executive to make rules and regulations in order to effectuate the intention and policy of the Legislature, must be exercised within the limits of mandate given to the rule making authority and the rules framed under an enactment must be consistent with the provisions of said enactment. The rules framed under a statute, if are inconsistent with the provisions of the statute and defeat the intention of Legislature expressed in the main statute, same shall be invalid. The rule-making authority cannot clothe itself with power which is not given to it under the statute and thus the rules made under a statute, neither enlarge the scope of the Act nor can go beyond the Act and must not be in conflict with the provisions of statute or repugnant to any other law in force” … The Supreme Court Rules are on a higher pedestal and promulgated on the basis of mandate given by the Constitution itself and not by the Government, object whereof was to enhance the power of review as conferred upon Supreme Court under Article 188 of the Constitution.”

(Underlining is ours)

56.         The Constitution also envisages that all judgements of this Court are meant to be obeyed and respected by the parties before it, and to the extent they decide questions of law or are based upon or enunciate a principle of law, be binding on all other Courts of Pakistan (under Article 189). To allow the existence of Section 5 in its present form on the Statute books would seriously rupture the principle of finality and binding precedent attached to the judgements of this Court without there being any constitutional sanction behind it.

57.         With respect to Section 6, we must bear in mind that the purpose behind litigation and a judicial system is that the process must come to an end and finality be attained inter se rights of the litigants. In this context, reference may usefully be made to Muhammad Javaid Shafi vs. Syed Rashid Arshad (PLD 2015 SC 212) where this Court held that:

“5. … From the obvious object of the law is that if no time constraints and limits are prescribed for pursuing a cause of action and for seeking reliefs/remedies relating to such cause of action, and a person is allowed to sue for the redressal of his grievance within an infinite and unlimited time period, it shall adversely affect the disciplined and structured judicial process and mechanism of the State, which is sine qua non for any State to perform its functions within the parameters of the Constitution and the rule of law.”

58.         The 1980 Rules were made pursuant to Article 191 (the Rule making power of this Court) and as stated above stand on a higher pedestal than ordinary legislation. The same cannot be changed, modified, amended or altogether displaced by ordinary legislation being beyond the legislative competence of the legislature.

59.         Lastly, coming to Section 7, we note that the said Section is a classic judicial ouster clause. It provides that “notwithstanding anything contained in any other law, rules or regulations for the time being in force or judgment of any court including the Supreme Court and a High Court, the provisions of the 2023 Act will prevail”. We would like to reiterate and reemphasize that in our current constitutional dispensation, the legislature legislates and the judicial branch interprets the law. No law that is found to offend any provision of the Constitution including the fundamental rights enshrined in the 1973 Constitution can be saved or protected by way of an ouster clause. Article 8(1) of the 1973 Constitution expressly states that: “Any law … in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.” It is trite that ouster of jurisdiction provisions contained in statutory instruments do not and cannot affect, curtail or diminish the Constitutional powers and jurisdiction of this Court.

60.         In addition and without prejudice to the above discussion, having held that Section 2 of the 2023 Act, which is the heart of the 2023 Act is ultra vires the Constitution, the entire superstructure built on it in the form of Sections 3, 4, 5, 6 & 7 are destined to fall to the ground. It is a settled principle of law that if the gist of the Act and its very basis is declared to be unconstitutional then the ancillary provisions too must go as those cannot stand alone. Parliament is deemed to have passed those ancillary provisions on the assumption that the main gist or life of the Act, namely that the review be converted into an appeal before a larger bench, is valid. If Section 2 is declared to be unconstitutional and void then the remaining sections of the Act cannot stand on their own and the entire Act ought to be declared void.

61.         We are mindful of the fact that although the constitutional Courts have a duty to protect and defend the Constitution and have been conferred with the power to rule on the vires of laws on the touchstone of the Constitution, the power of striking down laws, has to be exercised with a great deal of care and caution. A law should not be struck down unless no alternate interpretation is available that can harmonize the Statute with the provisions of the Constitution. We have carefully examined the 2023 Act and placed it next to the Constitution as well as applied the settled principles for discharging the solemn duty of whether or not to declare the 2023 Act unconstitutional, as spelt out in the judgment of this Court reported as Lahore Development Authority v. Imrana Tiwana (2015 SCMR 1739). However, despite our earnest effort to harmonize the Act with the provisions of the Constitution, we have concluded that 2023 Act is so patently, manifestly and irretrievably in conflict with and violative of various Articles of the 1973 Constitution that it is not possible to harmonize the two in any manner whatsoever.

62.         For avoidance of doubt, it is held and declared that all review petitions, whether filed against judgments and orders passed under the original or appellate jurisdiction of this Court are and shall continue to be governed by the provisions of Article 188 of the 1973 Constitution read with the 1980 Rules, which were, are and continue to be the governing law on the subject for all intents and purposes.

63.         For the reasons recorded above, the instant Petitions are allowed and it is declared that:

(i)     These Petitions are maintainable for the purposes of Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973.

(ii)    The Supreme Court (Review of Judgements and Orders) Act, 2023 is repugnant to and ultra vires the Constitution of the Islamic Republic of Pakistan, 1973 being beyond the legislative competence of the Parliament. It is accordingly struck down as null and void and of no legal effect.