ISLAMABAD: The Supreme Court on Thursday reserved its decision on whether the present six-judge bench or a larger bench would hear a set of petitions seeking review of the court’s majority judgement in Justice Qazi Faez Isa case.

“We reserve the order which will be delivered as soon as possible,” announced Justice Umar Ata Bandial who headed the six-judge SC that had taken up a set of review petitions moved by Justice Isa, his wife Sarina Isa and others.

The petitioners have contended that the three judges — Justice Maqbool Baqar, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi — who wrote dissenting notes in the detailed reasons should not be excluded from the bench hearing the review petitions.

At the outset of Thursday’s hearing, Justice Bandial sought clarity on a few points by asking senior counsel Muneer A. Malik, representing Justice Isa from the Karachi registry, to read the dissenting opinion of Justice Dorab Patel in the 1979 Zulfikar Ali Bhutto case. Besides Justice Patel, Justice Ghulam Safdar Shah and Justice Abdul Haleem were also among the dissenting judges.

The counsel read out the dissenting opinion in which Justice Patel had observed that though he did not concur with the majority judgement awarding capital punishment to former prime minister Bhutto, he would not express his opinion in review to keep the judicial dignity as well as adhering to the past practice.

Court allows SCBA president to furnish written arguments

“Will the dignity for the institution not stand in your way?” Justice Bandial asked the counsel.

Mr Malik, however, insisted that he would expect that the same bench take up the review petitions which heard the original petition in the first round of litigation against the filing of the presidential reference against Justice Isa.

When Justice Bandial asked other members of the bench if they have any query, Justice Muneeb Akhtar illustrated examples to emphasise that Order 26 Rule 8 of the Supreme Court Rules 1980 called for fixing the review petition before the same bench if it was necessary.

“We have to interpret the court rules and the current practice is that the review is placed before the author judge of the main or majority judgement and the judges who supported him,” Justice Akhtar observed.

The counsel said he had not been able to find anything to suggest that the numerical strength in the review petition should be less than the bench that delivered the original judgement.

The court was informed that Supreme Court Bar Association (SCBA) President Latif Afridi, who had to argue before the court on Thursday, was hospitalised but he would like to furnish his written arguments. The court asked him to do so in a day or two.

Advocate Hamid Khan, representing the SCBA and three other petitions, contended from the Lahore registry that since the judgment was one single whole consisting of majority judgement as well as minority view, the review petitions should be decided by the entire court.

Rasheed A. Razivi, the counsel for the Sindh High Court Bar Association, also said that the opinion expressed by Justice Patel should be determined by the entire court consisting of all judges.

Sarina Isa requested the court that she needed the transcripts of the statement she had made before the full court explaining how she managed to purchase the three offshore properties as well as the entire proceedings of the earlier hearings.

Justice Bandial said she had to formerly apply for the copy, adding that the court would also decide later whether she was a party in the case or not. He also said that since she had many sympathisers, she should engage a counsel so that she could be given a proper assistance or the court could even ask someone to assist her.

“My understanding of the court rules is that the review petitions are always posted to the same bench,” Mrs Isa said, asking if it was possible that the review petition was heard after amending these rules.

Justice Bandial observed that different court rules did not exist independently rather they had to be interpreted harmoniously, stating that under Order 11 of the court rules, it was the chief justice who constituted the bench and which was supposed to be accepted by all. “We will interpret and give a judgement on this,” he said.

But Mrs Isa said that being the head of the Supreme Judicial Council, the chief justice was a party in the matter.

“No, it is not like this,” Justice Bandial said, adding that one did not become a party just like that.

Published in Dawn, December 11th, 2020