Scope of Administrative and Judicial Powers Revisited
On 16th July 2019, the Supreme Court of Pakistan made available a series of judgments on its website. One particular judgment/order that has garnered attention is one rendered in Civil Appeal 699 of 2017 titled Commandant, Elite Force Khyber Pakhtunkhwa Peshawar v Jamshed Ali and others.[1]
The facts of the case are quite straightforward. There had been an appeal regarding the reinstatement of an individual into service, following a compromise and consequent acquittal against FIR (first information report) No.659 dated 08.11.2011 on charges of murder and attempt to murder under sections 302 and 324 of the Pakistan Penal Code (PPC). Following the registration of the FIR, the defendant was convicted on both counts by the trial court. Subsequently, disciplinary proceedings had been conducted ex parte (in his absence). Following the effectuation of a compromise between the defendant and the victim’s heirs, the defendant secured an acquittal before the High Court on appeal pursuant to section 345(6) of the Criminal Procedure Code (CrPC) 1898. The subject matter of the dispute concerned the proper conduct of a disciplinary inquiry after compromise and the resultant acquittal.
Justice Umar Ata Bandial, passing the order on 28.02.2019, allowed the appeal and ordered an inquiry to be conducted within two months. He did make a reference to the fact that the question of whether the compounding of an offence under section 345(6) could be equated with an acquittal was outside the scope of the petition at hand and that it warranted consideration and determination by some larger bench upon request (Shafqat v State, PLD 2019 SC 43).[2]
While the above-mentioned order remained fact-centric, additional notes tendered by Justice Qazi Faez Isa and Justice Munib Akhtar transcended the factual matrix and delved into the scope of the well-entrenched principle of stare decisis which permeates through our justice system and the administrative powers of the Chief Justice.
Justice Isa began his note dated 01.04.2019 by countenancing the decision of ordering an inquiry within two months. However, he highlighted the necessity of revising the effect of a compromise agreement for a convicted murderer and whether that person had earned himself an acquittal. As a starting point, he cited the seminal judgment of the Supreme Court in S.M.C 3 of 2017, PLD 2018 SC 703 in which Justice Asif Saeed Khosa, then senior puisne Judge of the Supreme Court, as part of a 3-member Bench, had settled the position as follows:
“(ii) In the context of the provisions of section 345(6), Cr.P.C. the effect of an acquittal recorded by a court on the basis of a successful and complete compounding of a compoundable offence shall include all the benefits and fruits of a lawful acquittal.”
The decision also predicated upon, among other matters, the language of section 345(6) which reads as follows:
“The composition of an offence under this section shall have the effect of an acquittal of the accused [with whom the offence has been compounded].”
In the words of the court,
“Composition of a compoundable offence is a concession extended by the legislature and also by the religion of Islam to the victims and their heirs and the same may not lightly be taken away or whittled down by the courts.”[3]
Justice Isa then proceeded to discuss a judgment rendered by himself as part of another 3-member Bench in Shafqat v State[4] decided on 29.10.2019, wherein he and Justice Yahya Afridi (with Justice Gulzar Ahmed dissenting) cast doubt over the decision in SMC 3/17 and requested the constitution of a larger Bench in the following terms:
27. In our opinion a number of provisions referred to above were not considered by the learned Bench of this Court in the SMC case judgment, and most probably because the requisite assistance was not provided by the law officers. Whilst we agree that by accepting the compromise it brings the sentence to an end, we are of the view that the convict does not secure an automatic acquittal as a consequence thereof. We, however, are mindful of the principle of stare decisis and that if a bench of a Court which comprises of an equal number of judges does not concur with the views of the other bench a larger bench should be constituted to resolve the matter. In this regard reference may be made to the cases of Multiline Associates v Ardeshir Cowasjee (PLD 1995 Supreme Court 423), Ardeshir Cowasjee v Karachi Building Control Authority (KMC) (1999 SCMR 2883) and Atma Ram v State of Punjab (AIR 1959 Supreme Court 519). This is all the more important in this case because the determination of the issue in hand will affect a very large number of cases. Therefore, it is all the more important that every aspect of the matter is thoroughly examined and determined. Consequently, we refer this case to the Hon’ble Chief Justice for the constitution of a larger bench.”
The most notable part of the Justice Isa’s note in C.P. 699 of 2017 is reproduced hereunder:
“3. My Secretary ascertained from the Office about the fate of the order passed in the case of Shafqat v State (above) decided on 29th October, 2019 which had stated, that, “we refer this case to the Hon’ble Chief Justice for the constitution of larger bench” and he is informed that the file was put up to the then Hon’ble Chief Justice (Mian Saqib Nisar, CJ) who declined to constitute a larger bench. In my humble opinion and with respect, when this Court passes a judicial order and refers the case to the Hon’ble Chief Justice for the constitution of a larger bench then the Hon’ble Chief Justice does not have the discretion not to constitute a large bench; his discretion in such a situation is limited to administratively determine the constitution of such bench.”
Needless to say, Justice Isa took a very firm stance with regard to the constitution of a larger Bench, opining that the Chief Justice was duty-bound to constitute a larger bench pursuant to a court order.
Following the authoring and circulation of the note, Justice Munib Akhtar authored his own note on 04.04.2019 expressing his observations on the above exposition. At para 3 of his note he addresses the proposition in the following words:
3. In para 3 of the separate note, my learned brother has noted that according to the information received by him the then Hon’ble Chief Justice did not constitute a larger Bench. My learned brother has expressed the view that “when this Court passes a judicial order and refers the case to the Hon’ble Chief Justice for constitution of a larger bench then the Hon’ble Chief Justice does not have the discretion not to constitute a large[r] bench; his discretion in such a situation is limited to administratively determine the constitution of such bench”. With respect, I am unable to agree. The binding effect of the ratio decidendi of a judgment of a Bench, on Benches of the same or smaller composition (by number) of the same Court, is well established. This rule is one of the main aspects of what is sometimes referred to as “horizontal” stare decisis. The point has been made with clarity by Gulzar Ahmed, J. in para 2 of his dissenting note. If a subsequent Bench of the same (or smaller) size is of opinion that the earlier decision merits reconsideration, it cannot for that reason take a different view. The subsequent Bench can certainly ask for the constitution of larger bench in such circumstances. However, any request so made (howsoever phrased or expressed) cannot be tantamount to an “order” that mandatorily requires the Chief Justice to constitute a larger Bench. With respect, the position of the Chief Justice is not, and cannot be, reduced to a mere administrative conduit in such circumstances. If such were the case, then the next step could well be for the subsequent Bench to, without more, arrogate itself the power to order the constitution of the larger Bench, with power to issue directions in this regard to the Registrar or Office of the Court. In my respectful view that is not, and cannot be, the law. It is well established that the Chief Justice is the “master of the roster”. That position cannot, with respect, be affected in the manner that appears to be suggested by my learned brother. Of course, the Chief Justice of whom such a request is made is not irrevocably bound by an initial inclination not to accede to the same. He may later change his view and act accordingly. A priori, any inclination not to accede to such a request is not binding on any subsequent holder of the office of Chief Justice. But, and this in my respectful view is the crucial point, the matter rests, and must necessarily rest, in the hands of the Chief Justice alone. This is the position at law as I conceive it to be.
4. In para 4 of the separate note, my learned brother has expressed certain apprehensions. With great respect, I am unable to agree. The position is clear as regards the applicability of stare decisis. In the present situation the law continues to be that as laid down in the Suo Moto case. In its “horizontal” aspect, i.e., insofar as this Court itself is concerned, stare decisis applies in terms as stated above. As regards the “vertical” aspect, i.e., in terms of Article 189, all other courts in the country are bound to apply the law so laid down. This remains so regardless of the (apparently so far unattended) request for a larger Bench made by the majority in Shafqat v State. With great respect, for purposes of stare decisis that request, as a matter of law, is not to be taken into account either by this Court or any other court in the country.”
From the above dicta, two points are discernible and warrant considerable attention.
1. Firstly, as per Article 189 of the Constitution, which encapsulates the principle of stare decisis,
“Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan.”
Justice Munib Akhtar aptly pointed out the two means of application of the principle:
- vertically i.e. the Supreme Court binds all lower courts with its decisions and enunciations/pronouncements, etc; and
- horizontally i.e. the applicability of Supreme Court judgments on its own Benches in future.
With regard to the latter, there is a series of judgments[5] which lends credence to the analysis of Justice Akhtar. It follows that a three-member Bench cannot refuse to follow another three-member Bench’s judgment in the same court. The only viable course of action available to the later bench is by making a request to the Chief Justice for the constitution of a larger Bench, as had been undertaken in the case at hand.
2. Secondly, and more particularly, the scope of authority of the Chief Justice in administrative matters required delineation. The extent of the Chief Justice’s authority to constitute Benches has been iterated and reiterated many times in judicial dicta. Under the 1973 Constitution, the seminal judgment on the constitution of Benches is Zulfikar Ali Bhutto v State, PLD 1978 SC 125, where Chief Justice Anwarul Haq declared the following:
13….… Under the Constitution and the law regulating the practice of the Supreme Court, it is not only the privilege but the duty and obligation of the Chief Justice to personally preside over all important cases, and to nominate Judges for hearing cases which come up before this Court. No person has the right to ask me to abdicate this responsibility, nor has the right to demand a Bench of his own choice. This would be contrary to the well-established norms regulating the functions of the superior Courts of this country.[6]
The responsibility of Chief Justice constituting Benches was more specifically dealt with by the Chief Justice a year later in Hamid Sarfraz v Federation of Pakistan, PLD 1979 SC 991, wherein the following had been stated:
“It is the undisputed duty and privilege of the Chief Justice, whether of a High Court or of the Supreme Court, to constitute Benches for the hearing or disposal of cases coming before his court…”[7]
Notably, both decisions pre-date the introduction of Supreme Court Rules, 1980 which have since 23rd November 1980 regulated the practice of the Supreme Court of Pakistan. For ease of convenience, the relevant order has been reproduced below:
“ORDER XI
CONSTITUTION OF BENCHES
Save as otherwise provided by law or by these Rules every cause, appeal or matter shall be heard and disposed of by a Bench consisting of not less than three Judges to be nominated by the Chief Justice:
Provided that
(i) all petitions for leave to appeal except petitions against acquittal, and
(ii) appeals from appellate and revisional judgments, and orders made by a Single Judge in the High Court,
(iii) appeals from judgments/orders of the Service Tribunals or Administrative Courts, and appeals involving grant of bail/cancellation of bail, may be heard and disposed of by a bench of two Judges, but the Chief Justice may, in a fit case, refer any cause or appeal as aforesaid to a larger Bench.
Provided further that if the Judges hearing a petition or an appeal are equally divided in opinion, the petition or appeal, as the case may be, shall, in the discretion of the Chief Justice, be placed for hearing and disposal either before another Judge or before a larger Bench to be nominated by the Chief Justice.”
Exercise of the power to constitute benches is ubiquitous as all rosters are authorized by the Chief Justice for the hearing of cases. Similarly, the Chief Justice is also empowered to refuse the fixation of a case or the constitution of a larger bench. The exercise of such power is manifest in Mir Alam Gul v Ismail, PLD 1990 SC 926.
The first major judgment to dilate upon the aforementioned Order XI of Supreme Court Rules 1980 came about in M.A. No. 657 of 1996 in References No. 1 and 2 of 1996, PLD 1997 SC 80, where the Supreme Court had ordered the following:
“4. There are Supreme Court Rules available for regulating the procedure. Application of the party with a request for constitution of Full Court Bench will be covered by Order XI, which provides specifically for constitution of Benches by the Chief Justice. It is very clearly provided therein that the Chief Justice may, in a fit case, refer any cause or appeal as aforesaid to a larger Bench.”[8]
Perhaps the most important judicial pronouncement on the subject is contained in Supreme Court Bar Association v Federation of Pakistan, PLD 2002 SC 939. Appointments of judges to the Supreme Court and the High Courts had been challenged by way of Constitution Petitions. With regard to the composition of Benches, the Supreme Court made an unequivocal declaration in the following words:
“14. …We reiterate here that this Court not once but on a number of occasions as laid down that it is the sole prerogative of the Chief Justice of Pakistan to constitute a Bench of any number of Judges to hear any particular case and neither an objection can be raised nor is any party entitled to ask for constitution of a Bench of its own choice.”
On the face of it, the aforementioned dictum seemingly intended to put an end to the question of limitations upon the Chief Justice to devise rosters and compose Benches. The view was subsequently vindicated in Shahzada Muhammad Aslam v Ch Muhammad Akram, PLD 2017 SC 142.[9] Similar powers had also been endorsed for Chief Justices of their respective High Courts as per the judgments in Hamid Sarfraz v Federation of Pakistan [supra], Abdul Rashid v Baboo, 2002 SCMR 171 and Muhammad Wasay Tareen v Chief Justice of Balochistan, 2005 SCMR 464.
However, in recent times, the extent of powers of the Chief Justice has been brought to the fore in Human Rights Case No. 14959-K of 2018. While in all cases discussed above, the authority of the Chief Justice had been questioned by litigants and lawyers, the recent case remains an instance where members of the Supreme Court of Pakistan have called into question the Chief Justice’s exercise of powers. Following a mid-session reconstitution of the Bench of the Supreme Court in Peshawar on 09.05.2018, two members of the Bench, Justice Qazi Faez Isa and Justice Syed Mansoor Ali Shah, expressed their disagreement with the sudden reconstitution of the Bench by the then honourable Chief Justice, vide notes dated 09.05.2018 and 01.01.2019, respectively.[10]
Reverting back to the case of C.A. 699 of 2017, it is submitted that judicial freedom to express one’s opinion is a foundation for the achievement of rule of law.[11] Notwithstanding the opinion of Justice Qazi Faez Isa, as per the decisions of the apex court itself the constitution of a larger Bench had not been obligatory upon the honourable Chief Justice. Comity, however, may dictate otherwise.
The Chief Justice serves as the head of Supreme Court and the paterfamilias of judiciary.[12] Part of the responsibility of the Chief Justice is to garner public confidence in the judiciary. Justice Isa’s concern in seeking revisitation of the law on compounding offences is not unfounded. In fact, the earlier case had been taken up suo moto satisfying the court that the matter was concerned with the enforcement of fundamental rights of public importance. This will clearly impact a large number of cases. A consolidated declaration of the law by a larger Bench would provide clear enunciation of the status of those who enter into compromises after committing murders. The practice of constitution of larger Benches is far from being uncommon, as also evidenced by a couple of recent instances of declarations by seven-member Benches of the Supreme Court:
- first, the issue of settling the singularity of an FIR;[13] and
- second, the distinction between compounding offences in qisas and ta’zir cases.[14]
Settlement of the question by a larger Bench would no doubt be beneficial, and affirmative, in enunciating the law on the subject.
Article 176 of the Constitution reads as follows:
“The Supreme Court shall consist of a Chief Justice known as the Chief Justice of Pakistan and so many other Judges as may be determined by an Act of Majlis-e-Shoora (Parliament) or, until so determined, as may be fixed by the President.”
The Supreme Court, as a body, under the leadership of the Chief Justice of Pakistan, who is the head of the court, must garner public confidence which is sine qua non for the strengthening of rule of law and the judiciary. After all, the Supreme Court is a beacon of protection for the citizens of Pakistan. Developing the law further is its responsibility and in doing so it must remain unified and pre-eminent. Our posterity depend on it.
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References
[1] http://www.supremecourt.gov.pk/web/user_files/File/C.A._699_2017.PDF
[2] Paragraph 5
[3] Paragraph 16
[4] Supra
[5] Sindh High Court Bar Association v Federation of Pakistan, PLD 2009 SC 879, at page 1239; Azmatullah v Hameeda Bibi, 2005 SCMR 1201, at page 1205-6; Pakistan Newspapers Society’s case, PLD 2004 SC 600, at page 618; Babar Shahzad’s case, 1999 SCMR 2518; Ardeshir Cowasjee v Karachi Building Control Authority, 1998 SCMR 2883, at page 2912; Muhammad Saleem v Fazal Ahmed, 1997 SCMR 315, at page 321; Multiline Associates Case, PLD 1995 SC 423; Pir Bakhsh v Chairman Allotment Committee, PLD 1987 SC 145 at page 163; Province of East Pakistan v Siraj-ul-Haq Pitwari, PLD 1966 SC 854 at page 923; Province of East Pakistan v Aziz-ul-Islam, PLD 1963 SC 296 at page 308.
[6] PLD 1978 SC 125 Ibid at page 132
[7] PLD 1979 SC 991 at page 993
[8] PLD 1997 SC 80 at page 82
[9] At page 145, para 6
[10] The self-explanatory reasoning of both Honourable Judges is reported as PLD 2019 SC 183.
[11] Per Justice Syed Mansoor Ali Shah in his note published at PLD 2019 SC 183, para 7.
[12] Per Justice Ajmal Mian in Al-Jehad Trust v Federation of Pakistan, PLD 1996 SC 324 at para 52, page 491
[13] Sughran Bibi v State, PLD 2018 SC 595.
[14] Muhammad Yousuf v State, PLD 2019 SC 461.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.
