IN THE SUPREME COURT OF PAKISTAN 
        (Review Jurisdiction)  
 
 
 
 
PRESENT:  
 
 
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, HCJ 
MR. JUSTICE JAVED IQBAL  
MR. JUSTICE SARDAR MUHAMMAD RAZA KHAN 
MR. JUSTICE KHALIL-UR-REHMAN RAMDAY 
MR. JUSTICE MIAN SHAKIRULLAH JAN 
MR. JUSTICE TASSADUQ HUSSAIN JILLANI 
MR. JUSTICE NASIR-UL-MULK 
MR. JUSTICE RAJA FAYYAZ AHMED 
MR. JUSTICE CH. IJAZ AHMED 
MR. JUSTICE GHULAM RABBANI 
MR. JUSTICE MUHAMMAD SAIR ALI  
MR. JUSTICE MAHMOOD AKHTAR SHAHID SIDDIQUI 
MR. JUSTICE JAWWAD S. KHAWAJA 
MR. JUSTICE RAHMAT HUSSAIN JAFFERI 
 
 
 
C.M.A. No.2745/2009 in C.R.P.No.Nil/2009 in Const.P.No.08/2009 
 
Justice Khurshid Anwar Bhinder  
 
 
 
…Applicant 
  
 
 
 
 
 
Versus  
 
Federation of Pakistan and another   
 
 
…Respondents  
 
 
C.M.A. No.2747/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009 
 
Justice Hasnat Ahmed Khan  
 
 
 
…Applicant  
 
 
 
 
 
Versus  
 
Sindh  High Court Bar Association, etc.  
 
 
..Respondents  
 
 
C.M.A. No.2748/2009 in C.R.P.No.Nil/2009 in Const.P.No.08/2009 
 
Justice Zafar Iqbal Chaudhry and another  
 
…Applicants  
 
 
 
 
 
 
Versus  
 
Federation of Pakistan and another   
 
 
…Respondents  
 
 
C.M.A. No.2750/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009 
 
Justice Syed Shabbar Raza Rizvi 
 
 
 
…Applicant  
 
 
 
 
 
 
Versus  
 
Sindh High Court Bar Association, etc. 
 
 
…Respondents  
 
 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
2 
C.M.A. No.2776/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009 
 
Syed Sajjad Hussain Shah 
 
 
 
 
…Applicant  
 
 
 
 
 
 
Versus  
 
Sindh High Court Bar Association, etc. 
 
 
…Respondents  
 
 
C.M.A. No.2779/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009 
 
Mrs. Yasmin Abbasi 
 
 
 
 
 
…Applicant  
 
 
 
 
 
Versus  
 
Sindh High Court Bar Association, etc. 
 
 
…Respondents  
 
 
C.M.A. No.2782/2009 in C.R.P.No.Nil/2009 in Const.P.No.08/2009 
 
Syed Sajjad Hussain Shah 
 
 
 
 
…Applicant  
 
 
 
 
 
Versus  
 
Nadeem Ahmed Advocate and another  
 
 
…Respondents  
 
 
C.M.A. No.2788/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009 
 
Muhammad Ahsan Bhoon 
 
 
 
 
…Applicant  
 
 
 
 
 
 
Versus  
 
Sindh High Court Bar Association, etc. 
 
 
…Respondents  
 
 
C.M.A. No.2790/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009 
 
Anwar-ul-Haq Pannu 
 
 
 
 
 
…Applicant  
 
 
 
 
 
Versus  
 
Sindh High Court Bar Association, Sindh  
 
…Respondents 
High Court, Karachi through its Secretary, etc. 
 
 
 
 
 
 
 
 
 
  
 
C.M.A. No.2825/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009 
 
Syed Hamid Ali Shah 
 
 
 
 
 
…Applicant  
 
 
 
 
 
Versus  
 
Sindh High Court Bar Association, etc. 
 
 
…Respondents  
 
 
C.M.A. No.4002/2009 in C.R.P.No.Nil/2009 in Const.P.No.09/2009 
 
Barrister Jahanzeb Rahim 
 
 
 
 
…Applicant  
 
 
 
 
 
 
Versus  
 
Federation of Pakistan through 
 
 
 
 …Respondents 
Ministry of Law, Justice & Human  
Rights, Islamabad, etc.  
 
 
 
 
 
 
 
 
 
  
 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
3 
CRIMINAL ORIGINAL PETITION NO.90/2009 
[Contempt matter regarding press statement 
made by Syed Zulfiqar Ali Bokhari] 
 
 
For the applicant 
 
 
: 
Mr. Wasim Sajjad, Sr. ASC 
(in C.M.A.No.2745/2009) 
 
 
Mr. Ejaz Muhammad Khan, AOR  
 
For the applicant 
 
 
: 
Mr. Farooq Amjad Meer, ASC 
(in C.M.A.No.2747/2009) 
 
For the applicant 
 
 
: 
Malik Muhammad Qayyum, Sr. ASC 
(in C.M.A.No.2748/2009) 
 
For the applicant 
 
 
: 
Dr. A. Basit, Sr. ASC 
 
 
(in C.M.A.No.2750/2009) 
 
 
Mr. G. N. Gohar, AOR 
 
For the applicant 
 
 
: 
Sheikh Zamir Hussain, Sr. ASC 
(in C.M.As.No.2776 & 2782/2009)  
Mr. Ejaz Muhammad Khan, AOR 
 
 
 
 
 
 
Mr. Mahmoodul Islam, AOR(absent) 
 
For the applicant 
 
 
: 
Dr. Khalid Ranjha, Sr. ASC 
(in C.M.A.No.2779/2009) 
 
 
Mrs. Yasmin Abbasi (In person)  
 
 
 
 
 
 
Mr. Mazhar Ali B. Chohan, AOR (absent) 
 
For the applicant 
 
 
: 
Dr. Khalid Ranjha, Sr. ASC 
(in C.M.A.No.2788/2009) 
 
 
Mr. A.H. Masood, AOR (absent)  
 
For the applicant 
 
 
: 
In person 
(in C.M.A.No.2790/2009) 
 
For the applicant 
 
 
: 
Syed Ali Zafar, ASC 
(in C.M.A.No.2825/2009) 
 
 
Mr. G. N. Gohar, AOR 
 
For the applicant 
 
 
: 
Syed Naeem Bokhari, ASC 
(in C.M.A.No.4002/2009) 
 
 
Mr. G. N. Gohar, AOR 
 
 
For the Federation  
 
: 
Mr. Shah Khawar,  
Acting Attorney General for Pakistan  
 
 
 
 
 
 
 
 
For the Sindh High Court Bar 
: 
Mr. Hamid Khan, Sr. ASC 
(On caveat)   
 
 
 
Mr. Rashid A. Rizvi, ASC  
 
 
 
 
 
 
 
Mr. M.S. Khattak, AOR 
 
For Nadeem Ahmed, Advocate  
: 
Mr.Muhammad Akram Sheikh, Sr. ASC 
(On caveat)   
 
 
 
Ch. Muhammad Akram, AOR 
 
On Court notice 
 
 
: 
Syed Zulfiqar Ali Bokhari (In person) 
 
Date of hearing 
 
 
: 
13.10.2009  
 
 
 
 
 
…….. 
 
 
 
 
 
JUDGMENT 
JAVED IQBAL, J.- The above captioned applications for 
permission to file review petitions against judgment dated 31.7.2009 
passed in Constitutional Petitions No.9 and 8 of 2009 have been 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
4 
dismissed by means of short-order dated 13.10.2009 which is 
reproduced herein below for ready reference:- 
 
“For reasons to be recorded later, by majority of 13 
to 1 (Sardar Muhammad Raza Khan, J dissenting), all 
these applications for permission to file review petitions 
against the judgment dated 31.07.2009 passed in 
Constitution Petitions Nos. 9 & 8 2009 are dismissed. 
2. 
For reasons to be recorded later, we unanimously 
hold and direct as under:- 
(1) 
The notices issued under Article 204 of the 
Constitution read with sections 3 and 4 of the 
Contempt of Court Act, 1976 or any other enabling 
provisions of the relevant law, to the Judges who 
have expressed their regrets and repentance; by 
tendering unconditional apologies and affirming 
their remorse through withdrawal of the petitions 
filed by them and tendering of resignations, are 
discharged; 
(2) 
Similarly, as to the Judges who have already retired 
and have tendered unconditional apologies and 
have expressed their repentance and remorse, the 
notices issued to them are discharged. 
(3) 
As to the Judges, who are contesting notices, they 
shall be proceeded against separately along with 
the cases of those Judges, who have not filed 
replies and/or have prayed for grant of time; 
(4) 
The Judges of the Supreme Court and the High 
Courts, 
who 
tendered 
resignations 
after 
pronouncement of the judgment dated 31.07.2009 
in deference thereto shall not be proceeded against; 
(5) 
The Judges who have tendered resignations, but 
have not filed replies to the notices, the process 
shall be repeated to them so as to file the replies 
within two weeks; 
(6) 
The 
Judges, 
who 
have 
neither 
tendered 
resignations nor have filed replies, are required to 
file replies within two weeks; 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
5 
(7) 
Mr. Ahmed Raza Kasuri, ASC, has prayed for grant 
of four weeks’ time to submit reply on behalf of 
Justice (Retd.) Abdul Hameed Dogar. Let the reply 
be filed within two weeks. 
(8) 
Justice (Retd.) Muhammad Nawaz Abbasi has filed 
reply, which is not unconditional apology, therefore, 
his matter shall be proceeded along with other 
cases; and 
(9) 
As far as Syed Zulfiqar Ali Bokhari is concerned, he 
has tendered unconditional apology and has 
thrown himself at the mercy of the Court, the notice 
issued to him is also discharged.” 
  
2. 
 
The reasons for the above reproduced short-order are as 
follows.                      
3. 
 
We may make it clear at the outset that we are not dilating 
upon the merits of the review petitions and we shall confine ourselves to 
the pivotal question which needs determination at first instance as to 
whether these review petitions are maintainable or otherwise? Before we 
could answer the said question, we intend to examine the respective 
contentions as agitated on behalf of the petitioners.  
4. 
 
Mr. Wasim Sajjad, learned Sr. ASC entered appearance on 
behalf of Mr. Khurshid Anwar Bhinder in CMA No.2745 of 2009 and 
addressed the Court at length on the question of maintainability whose 
prime contention remained that no such decision could have been given 
without affording proper opportunity of hearing in violation of the well 
entrenched doctrine of ‘audi alteram partem’ and the fundamental 
rights guaranteed in the Constitution coupled with the judicial 
precedents which ought to have been followed but were ignored. In 
order to substantiate his contention it is argued that it is a cardinal 
principle of law that no person should be condemned unheard and 
besides that the principle of audi alteram partem has also been jealously 
guarded by this Court. It is contended that the petitioner and all other 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
6 
removed judges were neither impleaded as party in the above mentioned 
Constitutional Petitions nor any opportunity of hearing was afforded 
which resulted in serious miscarriage of justice. It is next contended 
that this Court has ample powers as conferred upon it under Article 
188 of the Constitution of Islamic Republic of Pakistan, 1973 
(hereinafter referred to as the Constitution) to hear the review petitions 
and besides that no bar whatsoever has been imposed in the provisions 
enumerated in Order XXVI of the Supreme Court Rules, 1980 and even 
otherwise the petitioner may not be knocked out on the basis of sheer 
technicalities in the absence of any restraints imposed by law. It is also 
argued that in Civil Petition No.8 of 2009, a specific prayer was made 
for removal of the Judges including the applicant, who were not 
appointed in consultation with the Hon’ble Chief Justice of Pakistan but 
in consultation with Abdul Hameed Dogar, J, who was not a 
constitutional consultee. The applicant was appointed as Additional 
Judge of the Lahore High Court, Lahore on 14.12.2007 and as 
permanent Judge of that Court on 12.12.2008. The order dated 
03.11.2007 passed by a seven-member Bench of this Court restraining, 
inter alia, the Judges of the Supreme Court and High Courts from 
taking oath under any extra-constitutional set up, was set aside by an 
eight-members Bench vide order dated 06.11.2007. The applicant had 
no means to know that the latter order would be declared illegal and 
void at any time in the future. Further, the order dated 06.11.2007 got 
merged in the final order dated 19.11.2007, by which the Constitution 
Petition No. 73 of 2007 (Wajihuddin Ahmed v. Chief Election 
Commissioner) was dismissed. The order dated 03.11.2007 became 
alive on 31.07.2009 when a judgment was passed by a fourteen-
member Bench. On 03.11.2007, the applicant was not a Judge but was 
a lawyer, therefore, the order dated 03.11.2007 was not applicable to 
him.  It is further argued that in the matter of removal of a Judge of a 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
7 
superior Court, Articles 4, 9 and 25 of the Constitution would be 
attracted. Access to justice had been made a fundamental right. The 
applicants had been deprived of their right to hold office, therefore, they 
had a right to be heard against their removal. By virtue of Article 2A of 
the Constitution, the Islamic principles would be attracted, and an 
affected person would be granted the right of hearing.  It is next 
contended that the applicant was an aggrieved person within the 
contemplation of Order XXVI, Rule 1 of the Supreme Court Rules 1980, 
read with Order XLVII, Rule 1 of the CPC and had a right to file the 
review petition against the judgment of the Hon’ble Supreme Court, 
which adversely affected him. In order to substantiate his view as 
mentioned hereinabove the following case law has been referred to by 
Mr. Wasim Sajjad, learned Sr. ASC:-  
H. M. Saya & Company v. Wazir Ali Industries Limited (PLD 
1969 SC 65), Custodian of Evacuee Property v. Saifuddin 
Shah (PLD 1981 SC 565), Muhammad Siddique v. Chief 
Settlement & Rehab Commr. (PLD 1965 SC 123), Fehmida 
Khatoon v. Addl. Dy. Commr. PLD 1975 Lah.942 at 949, Al-
Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 at 
367, Faqir Ullah v. Khalil-uz-Zaman (1999 SCMR 2203) at 
2212, Shivdeo Singh v. State of Punjab AIR 1963 SC 1909 
at 1911,  Noubahar v. the State 2002 SCMR 1218 at 1219, 
Muhammad Yaqub v. Saeed Shah PLD 1961 Kar. 656, 
Jhabba Lal v. Shib Charan (AIR 1917 ALL. 160), Kawdu v. 
Berar Ginning Co. (AIR 1929 NAG 185), 1986 CLC 1048, 
Muhammad Akram Sheikh v. Federation of Pakistan (PLD 
1989 SC 229), Pakistan Muslim League (N) v. Federation of 
Pakistan (PLD 2007 SC 642 at 668). 
 
5. 
 
Mr. Farooq Amjad Meer, learned ASC entered appearance 
in CMA No.2747/2009 on behalf of Mr. Justice Hasnat Ahmed Khan 
and adopted the arguments of Mr. Wasim Sajjad, learned Sr. ASC with 
the further submission that the applicant irrespective of his status 
enjoys the protection as afforded by Article 4 of the Constitution and at 
least a notice should have been given enabling him to defend himself as 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
8 
an adverse order has been passed against him without affording proper 
opportunity of hearing. It is pointed out that notice was issued to 
General (Retd.) Pervez Musharraf and accordingly it should have been 
issued to the petitioner in the interest of justice, fair play and equity.  
6. 
 
Malik Muhammad Qayyum, learned Sr. ASC entered 
appearance on behalf of Mr. Zafar Iqbal Chaudhry and Mr. Muhammad 
Akram Qureshi in CMA No.2748/2009 and adopted the arguments as 
canvassed at bar by Mr. Wasim Sajjad, learned Sr. ASC with the further 
submission that neither the opportunity of hearing was afforded to the 
petitioners nor they were impleaded as party and, therefore, no adverse 
order could have been passed against them as it would be in violation of 
the well entrenched principles of the law of natural justice. It is also 
contended that mere publication of the proceedings in the electronic 
and print media did not constitute sufficient notice in law. Non-
issuance of notice to the applicant was against the very finding recorded 
by the fourteen-member Bench. 
7. 
 
Dr. A. Basit, learned Sr. ASC entered appearance on behalf 
of Mr. Justice Syed Shabbar Raza Rizvi in CMA No. 2750/2009 and 
submitted that Mr. Justice Syed Shabbar Raza Rizvi has no grievance 
qua the judgment impugned which is historic one but a few lapses are 
there which need rectification. It was urged with vehemence that the 
judgment passed by seven Members Bench was not within the 
knowledge of Mr. Justice Syed Shabbar Raza Rizvi who was not 
available at Lahore on the day when the said order was passed and 
besides that it was never communicated by the Registrar concerned to 
the Hon’ble Judges. It is pointed out that Mr. Justice Syed Shabbar 
Raza Rizvi was in his village on Saturday when the said order was 
passed by the seven Members Bench of this Court. It is also pointed out 
that Supreme Court has unbridled powers under Article 188 of the 
Constitution as well as Order XXVI of the Supreme Court Rules and, 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
9 
therefore, in the absence of any restraint imposed by any law the 
application may be allowed. It is also contended that this Court may 
exercise its power as conferred upon it under Article 187 of the 
Constitution. The learned counsel has relied upon case titled Zafar Ali 
Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 
869 at pages 1214, 1216). It is also contended that the celebrated 
judgment dated 31.07.2009 was required to be partially reviewed, in 
that, in Para 248, it was unequivocally laid down that the Judges, who 
made oath in violation of the order dated 03.11.2007 were guilty of the 
breach of the order. The said finding had pre-empted the power and 
jurisdiction of the Supreme Judicial Council. As a matter of fact, the 
Court, in such a proceeding, would record a tentative finding by using 
the words “prima facie”. 
8. 
 
Mr. Anwar-ul-Haq Pannu appeared in person in CMA 
No.2790/2009 and adopted the arguments of Mr. Wasim Sajjad, 
learned Sr. ASC and Malik Muhammad Qayyum, learned Sr. ASC. He 
also reiterated the submission that the judgment impugned has been 
passed in violation of universally accepted principles of natural justice 
i.e. audi alteram partem and the petitioner has been condemned 
unheard without affording him proper opportunity of hearing causing 
serious prejudice against him.  
9. 
 
Syed Ali Zafar, learned ASC entered appearance on behalf 
of Mr. Justice Syed Hamid Ali Shah in CMA No.2825/2009 and 
submitted that a person though not a party to a lis can file a review in 
view of the provisions as enumerated in Order XLVII CPC. It is next 
contended that no one should be condemned unheard and opportunity 
of proper defence being mandatory in nature required to be provided 
irrespective of the fact whether it has been provided by a particular 
statute or otherwise. It is pointed out that Order XLVII CPC makes it 
abundantly clear that any person considering himself to be aggrieved 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
10 
may file a review petition and neither any embargo whatsoever has been 
imposed nor any condition laid down therein. It is also contended that 
in view of the provisions as enumerated in Article 188 of the 
Constitution this Court has ample powers to hear a person at any stage 
irrespective of the fact whether he remained a party in appeal or 
otherwise. In this regard, particular reference has been made to the 
powers of Suo Motu review jurisdiction as conferred upon this Court. 
Syed Ali Zafar, learned ASC also referred to Article 187 (1) of the 
Constitution which according to him can also be invoked for the 
redressal of the grievances of the petitioner. Besides that the provisions 
as enumerated in Order 33 Rule 6 of the Supreme Court Rules, 1980 
have also been mentioned with the further submission that procedure 
should not be considered as a hindrance but justice should be done. It 
is also contended that the Constitution did 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 of stare decisis would come in its 
way so long as review was warranted in view of the significant impact 
on the fundamental rights of the citizens or in the interest of public 
good. The learned counsel lastly submitted that access to justice was a 
fundamental right and a Judge, as much as a citizen, was entitled to 
approach the Court for the redress of his grievance. In support of the 
submission, the learned counsel placed reliance on the case of Mr. 
Justice Iftikhar Muhammad Chaudhry, Chief Justice of Pakistan v. 
President of Pakistan (PLD 2007 SC 578). 
10. 
 
It is also mentioned that the order passed on 03.11.2007 by 
seven Members Bench of this Court on Saturday was never 
communicated or served upon the petitioner, hence the question of its 
violation does not arise and no conclusion can be drawn qua 
service/communication of said order on the presumption having no 
value in the eye of law. In order to substantiate the said version it is 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
11 
pointed out that no punishment could be awarded without having a 
concrete proof qua service of the said order on the petitioner. It is also 
mentioned that presumption of knowledge of the order passed on the 
assertion that it was widely circulated in the media and communicated 
to the Registrar of the High Court has no legal footings in such like 
proceedings and it can not be equated to that of an effective service.  
11. 
 
Syed Naeem Bokhari, learned ASC who entered appearance 
on behalf of Mr. Justice Jahanzeb Rahim, applicant in CMA 
No.4002/2009 referred to the case of M. H. Khondkar v. The State (PLD 
1966 SC 140) and sought recusal of certain Members of the Bench on 
the ground of bias. It was contended that he would exercise his right to 
raise issue of bias and the Court must hear him instead of knocking 
him out of the Court. It was also submitted by Mr. Naeem Bokhari, 
learned ASC that his arguments may be heard in Chambers so that he 
could highlight certain important aspects having substantial bearing on 
merits of the case. It is also contended that petitioner could not have 
been condemned unheard without impleading him as a party or 
issuance of notice. It is contended that the  judgment impugned is in 
violation of basic norms of principle of natural justice which resulted in 
serious miscarriage of justice and on this score alone the review petition 
preferred by the petitioner may be heard on merits and proper 
opportunity of hearing be afforded. The learned ASC also explained two 
cardinal principles of natural justice i.e. “audi alterm partem” and 
“nemo judex in causa sua”. The learned ASC has referred case of M.H. 
Khondkar (supra) to support his view point. It is argued with vehemence 
that the applicant was not a party to the judgment dated 31.07.2009, 
wherein it was concluded that the applicant had committed misconduct 
and his case was directed to be placed before the Supreme Judicial 
Council. He lastly submitted that the provisions of Rule 6 of Order XXVI 
of the Supreme Court Rules 1980, can be taken into consideration in 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
12 
the instant case because the applicant was not represented at the 
hearing of the main case. 
12. 
 
Sheikh Zamir Hussain, learned Sr. ASC entered appearance 
on behalf of Mr. Justice Syed Sajjad Hussain Shah in C.M.As. No.2776 
& 
2782 
of 
2009 
and 
adopted 
the 
arguments 
of  
Mr. Wasim Sajjad, learned Sr. ASC, Malik Muhammad Qayyum, learned 
Sr. ASC and Mr. Farooq Amjad Meer, learned ASC with the further 
submission that the provisions as enumerated in Order XXVI Rules 1 
and 6 of the Supreme Court Rules read with Article 188 of the 
Constitution can be pressed into service conveniently by allowing the 
civil miscellaneous application. It is also pointed out that no restriction 
whatsoever has been imposed in Order XXVI Rules 1 and 6 of the 
Supreme Court Rules and for the sake of arguments if presumably 
there is any hurdle that can be removed as technical knockout is not 
desirable and every lis should be decided on merits and in accordance 
with law. It is pointed out that the Supreme Court Rules are 
subservient to the Constitution and may not be considered as 
hindrance for imparting justice. It is also pointed out that rule can be 
relaxed in case of hardship which is discretion of this Court and it 
should be exercised as it would be in the interest of justice. It is also 
contended that the Supreme Court and the High Courts were the 
Courts of record. The principle of absolute justice and absolute fairness 
demanded that if the Court, while writing a judgment found that the 
judgment was going to affect someone, who was not heard notice would 
be issued to him, and generally it did the same thing. Article 188 of the 
Constitution conferred upon the Supreme Court substantive power of 
review. Though such power was subject to any act of Majlis-e-Shoora 
and the rules framed by the Supreme Court, but the constitutional 
power could not be curtailed by any subordinate legislation, and would 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
13 
always prevail over the law/rules. The learned counsel has relied upon 
the case of Asad Ali v. Federation of Pakistan (PLD 1998 SC 161). 
13. 
 
Dr. Khalid Ranjha, learned Sr. ASC entered appearance on 
behalf of  Mrs. Justice Yasmin Abbasi in CMA No.2779/2009 and 
adopted the arguments of Mr. Wasim Sajjad, learned Sr. ASC with the 
further submission that Supreme Court Rules cannot curtail the 
Constitutional powers conferred upon this Court under Article 188 of 
the Constitution. Mrs. Justice Yasmin Abbasi also argued for herself 
and submitted that she was not aware of the restraining order of seven 
Members Bench by this Court passed on 3.11.2007 as it was never 
communicated to her by the Registrar concerned. It is submitted that 
oath was taken on 3.11.2007 in a good faith by following the prevalent 
precedents. It is submitted that non-communication of restraining order 
passed by seven Members Bench of this Court being a question of fact 
requires consideration and no conclusion can be drawn qua its service 
on the petitioner merely on the basis of presumption. It is also 
submitted that notice was given on 22.7.2009 to General (Retd.) Pervez 
Musharraf and accordingly all the affected persons including removed 
Judges should have been impleaded as party by issuance of notice 
which was not done resulting in serious miscarriage of justice. It is also 
pointed out that social justice as enunciated by Islam also requires that 
no person should be condemned unheard and proper opportunity of 
defence must be afforded which was not done in this case. It is time and 
again pointed out that on 3.11.2007 the order passed by seven 
Members Bench was never communicated to her. It is also contended 
that clause 3 of the Oath of Office (Judges) Order, 2000 provided that 
any person holding office of Judge of the Supreme Court or a High 
Court would not continue to hold office if he did not make oath within 
the time determined in that behalf. Accordingly, the Judges who did not 
make oath ceased to hold office. The matter came up before a twelve-
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
14 
member Bench of the Supreme Court where it was held that the 
removal of the Judges under the Oath Order, 2000 was past and closed 
transaction. Therefore, even if she had got proper knowledge of the 
order dated 3.11.2007, she would have made oath otherwise, on the 
basis of the past practice, if she had not made oath on 3.11.2007, she 
would also have been deprived of office of Judge. 
14. 
 
Mr. Muhammad Ahsan Bhoon entered appearance in 
person in CMA No.2788/2009 and requested that the grounds 
mentioned in the review petition may be considered as his arguments.  
15. 
 
Mr. Rashid A. Rizvi, learned Sr. ASC entered appearance on 
behalf of caveat (Sindh High Court Bar Association) and strenuously 
controverted the view point as canvassed at bar by the learned Sr. ASC 
on behalf of applicants with the further submission that CMAs are not 
maintainable as the applicants were never impleaded as party and 
besides that they were neither necessary parties nor proper parties, 
hence the question of filing review petition against judgment dated 
31.7.2009 does not arise. In order to substantiate his version it is 
argued that no Hon’ble Judge was involved in Constitutional Petitions 
No.9/2009 and 8/2009 and no question whatsoever regarding their 
eligibility, qualification or entitlement for appointment against the post 
of Judge was ever raised rather the prime question urged before the 
Hon’ble Court was that the purported act done by General (Retd.) Pervez 
Musharraf between 3.11.2007 to 16.12.2007 aimed at to suspend and 
amend 
the 
Constitution 
through 
several 
instruments 
were 
unconstitutional, invalid and without legal consequence and of the 
appointments of Judges of superior judiciary made on or after 
3.11.2007 up-till 22.3.2009 without having consultation of Hon’ble 
Chief Justice of Pakistan were unconstitutional, invalid and without 
any legal consequence and the prime thrust was on the question 
whether PCO was a valid piece of legislation? He submitted that none of 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
15 
the Judges were impleaded as party nor criticized in this regard and 
more so the judgment dated 31.7.2009 does not amount to any stigma 
regarding any of the Judges and hence re-hearing of the case would be 
nothing but an exercise in futility. The learned ASC further argued that 
entire superstructure raised on the foundation was based on the 
actions of General (Retd.) Pervez Musharraf taken between 3.11.2007 to 
16.12.2007 which were declared unconstitutional, null and void and 
therefore, no one can claim and say that such a superstructure was 
Constitutional and legal. It is mentioned that none of the advocates on 
behalf of applicants has supported the PCO and subsequent action of 
General (Retd.) Pervez Musharraf. The learned Sr. ASC on behalf of 
caveat also referred to the provisions as enumerated in Order XXV Rule 
9 of the Supreme Court Rules which, inter alia, provides that notice 
shall be served on all persons directly affected and on such other 
persons as the Court may direct but no such direction was ever issued 
by the Court. It is also contended that the judgment dated 31.7.2009 is 
a judgment in rem and, therefore, the applicants have no locus standi to 
make such petitions. In order to substantiate his version case titled 
Federation of Pakistan v. Qamar Hussain Bhatti (PLD 2004 SC 77) has 
been referred. Mr. Rashid A. Rizvi, learned Sr. ASC urged with 
vehemence that in the past Constitutional history no affected Judges 
have ever pleaded their cause for seeking service as a Judge which 
otherwise is neither desirable nor in accordance with the principles 
relating to morality and ethics. It is further argued that the applicants 
had not challenged PCO and the verdict given in case titled Tika Iqbal 
Muhammad Khan v. General Pervez Musharraf Chief of Army Staff (PLJ 
2008 SC 446) rather supported the judgment of 31.7.2009 and once the 
judgment is supported no particular observation can be challenged or 
any prayer for its review can be made because the judgment has been 
supported in its entirety and had the applicants been aggrieved by the 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
16 
judgment of 31.7.2009 they would have challenged it. The learned Sr. 
ASC also pointed out that Order XXVI Rule 1 of the Supreme Court 
Rules hardly renders any assistance to the case of applicants. The 
learned Sr. ASC has referred cases titled Pir Bakhsh v. Chairman, 
Allotment Committee (PLD 1987 SC 145 at 166), Ghulam Muhammad 
v. Saeed Ahmad (1986 CLC 1048), Federation of Pakistan v. Qamar 
Hussain Bhatti  (PLD 2004 SC 77) in support of his above mentioned 
contentions. 
16. 
 
Mr. Hamid Khan, learned Sr. ASC also entered appearance 
on behalf of caveat (Sindh High Court Bar Association) and supported 
the arguments as advanced by Mr. Rashid A. Rizvi, learned Sr. ASC 
with the further submission that the applicants were fully aware 
regarding the proceedings and they could have joined it at appropriate 
stage and before the pronouncement of judgment dated 31.7.2009. This 
was not done for the reasons best known to them. Mr. Hamid Khan, 
learned Sr. ASC also invited the attention of this Court to Order XXVI 
Rule 9 of the Supreme Court Rules and submitted that it cannot be 
interpreted in such a manner to infer that each party can file a separate 
review without having sufficient lawful justification which is lacking in 
this case. It is also argued that the appointments of certain Judges were 
declared unconstitutional and unlawful as a sweep and consequence of 
the judgment impugned and therefore, no one can claim as a matter of 
right that he is an aggrieved person as it would be against the fall out of 
judgment which is binding in its nature in view of the provisions as 
enumerated in Article 189 of the Constitution. It is also contended that 
no new principle whatsoever has been enunciated but on the contrary 
the well entrenched legal principles qua appointment of Judges in cases 
titled Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) and 
Asad Ali v. Federation of Pakistan (PLD 1998 SC 161) have been 
followed. In case of enunciation of any new principle the applicants may 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
17 
have some grievance but now they cannot be considered aggrieved in 
any manner. According to Mr. Hamid Khan, learned Sr. ASC the 
applicants are seeking review of the judgment delivered in cases titled 
Al-Jehad Trust, Asad Ali (supra) and Ghulam Hyder Lakho v. Federation 
(PLD 2000 SC 179) which cannot be allowed at this belated stage. It is 
also contended that case law mentioned by Mr. Wasim Sajjad, learned 
Sr. ASC cannot be made applicable as there is a difference between 
review and appeal which was not kept in view while referring to the case 
law. It is also pointed out that in case titled Al-Jehad Trust (supra) the 
affected Judges from Peshawar and Sindh were never impleaded as 
party and impleading of the applicants as a party would set a new 
precedent which would not be in consonance with the dictum laid down 
in the cases of Al-Jehad Trust, Asad Ali and Ghulam Hyder Lakho 
(supra) but rather it would be contrary and in violation thereof. It is also 
mentioned that individuals are not important but it is the national 
interest which is supreme and the same has been kept intact in the 
judgment dated 31.7.2009 which being historic one hardly needs any 
kind of review as each and every aspect of the controversy brought 
before the Court has been dilated upon and decided in a comprehensive 
manner. Mr. Hamid Khan, learned Sr. ASC further contended that some 
time we have to go by legally permissible presumption and argued that 
the order dated 03.11.2007 passed by learned seven Members Bench 
restraining all the Judges of superior Courts to take oath was in the 
knowledge of applicants and by no stretch of imagination it can be said 
that they remained unaware. It is contended that for the sake of 
arguments if their ignorance is accepted even then there could be no 
justification for their conduct after taking oath as they could have taken 
appropriate action in accordance with the order passed by seven 
Members Bench when it came to their knowledge which was not done 
and it speaks volumes about their conduct. The learned Sr. ASC also 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
18 
contended that country remained in turmoil for a considerably long 
time and such instances must not be repeated again. For the first time 
in the history this has been checked by this Court in judgment dated 
31.7.2009. Mr. Hamid Khan, learned Sr. ASC submitted in a categoric 
manner that it is not his case that no affected person can file a review 
who was not a party in the proceedings but the case of applicants 
cannot be equated to that of an ordinary case being very exceptional 
and in view of special circumstances and sweeping effects of the 
judgment. The controversy before the Court was in respect of the 
unconstitutional acts of General (Retd.) Pervez Musharraf from 
3.11.2007 to 15.12.2007 and the judgment in Tika Iqbal Muhammad 
Khan’s case (supra) validating the same were either to be upheld or 
declared unconstitutional. Whenever a judgment of this generality was 
passed, it would not be a few applicants who would be affected, rather 
innumerable others would be affected and the right of review cannot be 
conferred on each of them. Mr. Hamid Khan, learned Sr. ASC has also 
invited our attention to Article 112 of the Qanun-e-Shahadat, Order 
1984. The learned Sr. ASC has referred the case law enunciated in Al-
Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), Asad Ali v. 
Federation of Pakistan (PLD 1998 SC 161), Ghulam Hyder Lakho v. 
Federation of Pakistan (PLD 2000 SC 179), Hussain Bakhsh v. 
Settlement Commissioner (PLD 1970 SC 01), Jibendra Kishore etc v. 
Province of East Pak (PLD 1957 SC 09). 
17. 
 
Mr. Muhammad Akram Sheikh, learned Sr. ASC entered 
appearance for caveat (Nadeem Ahmed, Advocate) and pointed out that 
law qua appointment regarding Judges has already been declared in 
case of Al-Jehad Trust (supra) wherein it was held that even the 
consultation with Hon’ble Acting Chief Justice of Pakistan was not 
constitutional and lawful. It is next contended that the CMAs are not 
maintainable as no rights whatsoever were accrued in favour of the 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
19 
applicants and besides that foundation of their claim is not based on 
constitutional and valid grounds and as such right of hearing would not 
be available to them. Mr. Muhammad Akram Sheikh, learned Sr. ASC is 
also of the view that, however, the rights of aggrieved persons and 
individuals can be taken care of in view of the provisions as enumerated 
in Article 188 of the Constitution and Order XXVI of the Supreme Court 
Rules but the cases of applicants are absolutely distinguishable and 
hence the above mentioned provisions cannot render any assistance to 
their cause. It is pointed out that the powers as conferred upon this 
Court under Article 188 and the Rules made thereunder must be 
utilized for the benefit of the people of Pakistan and the doors for 
aggrieved persons should not be closed in view of the provisions of 
review as provided under the law. The learned Sr. ASC has relied upon 
cases titled Rustomji v. Offl. Liquidator (AIR 1919 Lahore 180), 
Muhammad Rafique v. Maryam Bibi (1996 SCMR 1867), Hameed 
Akhtar Niazi v. Secretary, Establishment Division (1996 SCMR 1185). 
18. 
 
Mr. Shah Khawar, learned Acting Attorney General for 
Pakistan, entered appearance on behalf of Federation and submitted 
without any ambiguity that CMAs are not competent and all the actions 
taken by Chief of Army Staff were unconstitutional and ab initio void as 
declared by this Court in its judgment dated 31.7.2009 and in 
consequence thereof the Review petitions are not maintainable. It is also 
argued that notice was issued to General (Retd.) Pervez Musharraf. If he 
wished to join the proceedings, he could do that. Similarly, notice was 
also meant for all others concerned, who could join those proceedings. 
Clearly, ample opportunity was provided to all the applicants. In the 
light of Article 188 and rules, because they were not party to the 
proceeding before the Court, technically and legally they had no right to 
file review. The judgment of the fourteen-Member Bench had interpreted 
the Constitution and settled a principle of law, it had the force of law 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
20 
and was binding upon all concerned and therefore no exception can be 
taken.  
19. 
 
We have carefully examined the respective contentions as 
agitated on behalf of the parties in the light of relevant provisions of the 
Constitution, law and rules made thereunder. It is to be noted that 
there are two categories of Judges i.e. the first comprising those who 
were Judges of this Court or of any of the High Courts on 3.11.2007 
and the second category is of those persons who were notified as 
Judges of this Court or of the High Courts between 4.11.2007 and 
23.3.2009 on the basis of “consultation” with Abdul Hameed Dogar, J., 
purporting to act as Chief Justice of Pakistan. The need for classifying 
the applicants into the aforesaid categories will be apparent from the 
discussion below. 
20. 
 
It is to be kept in mind that the judgment of 31.7.2009 has, 
in clear and unequivocal terms, declared the actions of 3.11.2007 taken 
by General (Retd.) Pervez Musharraf to be un-Constitutional and void 
ab initio. In none of the petitions before us, has any challenge been 
made against this declaration which is the foundation and bedrock of 
the judgment. The other aspects of the judgment naturally and logically 
flow as a consequence of such declaration. Once this premise is 
understood, the adjudication of the petitions before us becomes simple.  
21. 
 
We first take up for consideration the case of the petitioners 
in the second category noted above. These petitioners were notified as 
Judges on the basis of “consultation” with Mr. Justice Abdul Hameed 
Dogar. For reasons which have been elaborately set out in the judgment 
sought to be reviewed, it is clear that Mr. Justice Dogar was not the 
Chief Justice of Pakistan. The petitioners in this category have not 
claimed or even remotely suggested that Mr. Justice Dogar was the 
Chief Justice of Pakistan. The most which has been urged by them is 
that he was the de facto Chief Justice of Pakistan and, therefore, 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
21 
consultation with him was sufficient to fulfill the requirement of Article 
193 of the Constitution. This contention is misconceived and wholly 
without merit. We need go no further than the case titled Al-Jehad 
Trust Vs. Federation of Pakistan and others (PLD 1996 SC 324) to 
debunk the argument. The ratio in the said precedent has been followed 
and reiterated in the cases titled  Malik Asad Ali and others Vs. 
Federation of Pakistan and others ( PLD 1998 SC 161) and Ghulam 
Hyder Lakho Vs. Federation of Pakistan ( PLD 2002 SC 179).  In the 
light of these precedents, there remains no doubt whatsoever as to the 
exact meaning of Article 193 of the Constitution viz. that none other 
than the Chief Justice of Pakistan and not even an Acting Chief Justice 
of Pakistan, who is a Constitutional functionary, can be the consultee 
in terms of the aforesaid Constitutional provision. It therefore follows 
(consistent with established precedent) that the persons comprised in 
the second category mentioned above were not Judges of the High 
Courts regardless of the fact that they purported to occupy such office. 
In the circumstances, we are not in any doubt that they do not possess 
locus standi to file the CMAs or review petitions, the sole object of which 
is to seek an order that they were validly appointed as Judges and are 
entitled to hold such office.  
 
According to Mr. Wasim Sajjad, learned Sr. ASC, pursuant to 
acceptance of C.P. No.8 of 2009 the petitioners have been declared not 
to be Judges and soon after the judgment impugned the petitioners in 
CMA No.2745 of 2009 and the other persons falling in the second 
category were removed from their offices by means of Notification No. 
F.12(4)/2007-A.II-(Vol.II)(d) dated 2.8.2009. We have considered this 
argument advanced by learned counsel but find little force to commend 
it. Firstly, it is to be noted that the removal of the petitioners from the 
office being occupied by them was a direct consequence of the finding 
that the actions of General (Retd.) Pervez Musharraf taken on 3.11.2007 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
22 
were void ab initio and secondly that the Notifications of those 
petitioners who were appointed Judges of the High Courts between 
3.11.2007 and 23.3.2009 had not been issued after “consultation” with 
the Chief Justice of Pakistan as mandated by Article 193 of the 
Constitution. These findings enunciate a principle of law and are based 
on the interpretation of the relevant provisions in Part-VII of the 
Constitution including Article 193, supra relating to the Judicature. The 
same are binding in view of the provisions as envisaged in Article 189 of 
the constitution which, inter alia, provide that 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 shall be binding on all 
other Courts in Pakistan. The ultimate responsibility of interpreting the 
law of the land is that of the Supreme Court. (Maroof Khan v. Damsaz 
Khan NLR 1992 Civ. 97, Salah-ud-Din v. The State PLJ 1990 Cr.C. 270, 
Malik Muhammad v. Jan Muhammad 1989 CLC 776, Abdul Ghaffar 
Khan v. Saghir Ahmad Aslam PLD 1987 Lah. 358, Abdul Ghaffar Khan 
v. Saghir Ahmed Aslam PLJ 1987 Lah. 384, Abdul Ghaffar Khan v. 
Saghir Ahmed Aslam, etc 1987 LN 504, Roshan Ali v. Noor Khan PLD 
1985 SC 228, Roshan Ali v. Noor Khan PLJ 1985 SC 370, Roshan Ali v. 
Noor Khan 1985 PSC 734, Muhammad Khan v. Sanaullah PLD 1971 
S.C.324, Khalid Rashid v. State PLD 1972 Lah. 729, Ali Muhammad v. 
Mahmood-ul-Hassan PLD 1968 Lah. 329, Hashim v. State PLD 1963 
Lah. 82).  Where the Supreme Court deliberately and with the intention 
of settling the law, pronounces upon a question, such pronouncement 
is the law declared by the Supreme Court within the meaning of this 
article and is binding on all Courts in Pakistan. It cannot be treated as 
mere obiter dictam. Even obiter dictam of the Supreme Court, due to the 
high place which the Court holds in the hierarchy of courts in the 
country, enjoy a highly respected position as if it contains a definite 
expression of the Court’s view on a legal principle, or the meaning of a 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
23 
law. (M. Ismail & Sons v. Trans-Oceanic Steamship Co., Ltd PLD 1966 
Dacca 296, Nagappa v. Ramchandra AIR 1946 Bombay 365, 
K.C.Venkata Chalamayya v. Mad. State AIR 1958 Andh-Par. 173, K.P. 
Doctor v. State of Bombay AIR 1955 Bom. 220, Bimla Devi v. 
Chaturvedi AIR 1953 All. 613). In the case of non-implementation of the 
judgment it will have to be found out as to who is responsible for not 
implementing it. Article 190 of the Constitution is a mandatory 
provision under which there is no alternative for the Executive but to 
act in aid of the Supreme Court. Persons identified as responsible for 
non-implementation of the judgment can be punished by the Supreme 
Court for contempt for disobedience of its judgment. (Al-Jehad Trust v. 
Federation of Pakistan PLD 1997 SC 84, Abdul Hameed v. Special 
Secretary, Education Schools 2007 SCMR 1593, Abdul Waheed v. 
Ramzanu 2006 SCMR 489, Nazar Abbas Jaffri v. Secretary to 
Government of the Punjab 2006 SCMR 606, Muhammad Sharif v. 
Settlement Commissioner 2007 SCMR 707, Shaukat Baig v. Shahid 
Jamil PLD 2005 SC 530). Such judgments, to the extent of the legal 
principle settled therein, are judgments in rem. Courts as also parties 
litigating in respect of matters covered by legal principles enunciated by 
the Supreme Court, can at best, distinguish the precedent of this Court 
but the Courts before which such litigation arises  cannot disregard the 
legal principle so  enunciated. This Court, however, by virtue of powers 
under Article 188 of the Constitution may review any judgment 
pronounced or any order made by it. In the present case, since there is 
no challenge made to the findings and declarations recorded in the 
judgment of 31.7.2009 in respect of the actions of 3.11.2007 and 
“consultation” in terms of Article 193 of the Constitution, the true 
meaning of the relevant Articles of the Constitution, has been laid 
down. Such enunciation affects not only the petitioners but others as 
well to lesser or greater degrees. To illustrate this point, the case of all 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
24 
those litigants who have lost legal actions in the High Courts and in this 
Court between 4.11.2007 to 23.3.2009, can be taken note of. Such 
litigants are directly and adversely affected by the judgment of 
31.7.2009. This is so because they have been prevented from agitating 
those matters on the ground that the Courts which rendered decisions 
against them were coram non judice. If the argument advanced on 
behalf of the petitioners is accepted, there will be no justification for not 
allowing each one of the said litigants from seeking review of the 
judgment of 31.7.2009 on the ground that they were not impleaded as 
parties or afforded an opportunity of hearing before affecting their rights 
to their detriment. Such losing litigants as aforesaid, have a much 
better case than the petitioners. 
22. 
 
We next take up for consideration the cases set up by those 
petitioners who fall in the first category mentioned above. At the outset, 
it is to be stated that they too have not challenged the findings and the 
declaration recorded in the judgment of 31.7.2009 to the effect that the 
actions taken by General (Retd.) Pervez Musharraf on 3.11.2007 were 
un-Constitutional and void ab initio. In so far as the Hon’ble Judges 
who fall within the first category are concerned, their cases stand 
entirely on different footing and are distinguishable from the cases of 
Hon’ble Judges who were appointed in superior judiciary in violation of 
the Constitution and precedent law already discussed in preceding 
paragraphs. However, they have deliberately and knowingly violated the 
order of seven Members Bench and took oath not only in flagrant 
violation thereof but from Justice Abdul Hameed Dogar who was never 
and could have never been appointed as Chief Justice of Pakistan for 
the reasons mentioned in the judgment impugned. They have acted in a 
highly prejudicial, unconstitutional and contemptuous manner fully 
knowing the implications and consequences of non-compliance of the 
said order being mandatory in nature and binding upon them pursuant 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
25 
to the provisions as enumerated in Article 189 of the Constitution 
which has been discussed in the preceding paragraphs. After having 
taken into consideration all the pros and cons of the issue it was held in 
the judgment impugned as follows:- 
(iv) 
the Judges of the Supreme Court of Pakistan, if any, 
the Chief Justices of the High Court, if any and the Judges 
of any of the High Courts, if any, who stood appointed to the 
said offices prior to 3.11.2007 but who made oath or took 
oath of their respective offices in disobedience to the order 
passed by a Seven Member Bench of the Supreme Court of 
Pakistan on 3.11.2007 in C.M.A.No.2869 of 2007 in 
Constitution Petition No.73 of 2007, shall be proceeded 
against under Article 209 of the Constitution. The Secretary 
of the Law Division of the Government of Pakistan shall take 
steps in the matter accordingly.  
Provided that nothing hereinabove shall affect those 
Judges who though had been appointed as Judges/Chief 
Justices of any of the High Courts between 3.11.2007 to 
22.3.2009 but had subsequently been appointed afresh to 
other offices in consultation with or with the approval of or 
with the consent of the Constitutional Chief Justice of 
Pakistan.” 
It was their Constitutional, legal and moral duty to defend the 
Constitution but amazingly they took oath under the PCO having no 
Constitutional and legal sanctity. In such view of the matter to check 
such transgressions and blatant violation of the order passed by this 
Court, there was no escape but initiation of action under Article 209 of 
the Constitution and there is absolutely no lawful justification 
warranting interference in the judgment impugned. We are deliberately 
withholding our comments lest it may not prejudice the case of Hon’ble 
Judges in future before the Supreme Judicial Council. 
23. 
 
In view of what has been stated herein above it is not 
necessary to discuss all the arguments advanced by Mr. Wasim Sajjad, 
learned Sr. ASC on behalf of applicant (Khurshid Anwar Bhinder in 
C.M.A. No.2745/2009) and adopted by learned counsel representing 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
26 
other applicants, however, we are dilating upon some of the contentions 
to show that absolutely no case of review is made out and the petitions 
are not maintainable.  
24. 
 
First of all we intend to deal with the prime contention of 
Mr. Wasim Sajjad, learned Sr. ASC that in view of the provisions as 
enumerated in Article 188 of the Constitution and Order XXVI of the 
Supreme Court Rules these CMAs are maintainable and the applicants 
cannot be knocked out on sheer technicalities which has always been 
considered undesirable. Article 188 of the Constitution is reproduced 
herein below for ready reference:- 
“188. Review of judgments or orders by the Supreme 
Court. The Supreme Court shall have power, subject to 
the provisions of any Act of (Majlis-e-Shoora (Parliament)] 
and of any rules made by the Supreme Court, to review 
any judgment pronounced or any order made by it”. 
 
25. 
 
A bare perusal would reveal that it has been couched in a 
very simple and plain language hardly necessitating any scholarly 
interpretation. It, inter alia, provides that the Supreme Court has power 
to review its judgment or order subject to the provisions of any Act of 
Parliament and any rule made by the Supreme Court itself. (The 
contention whether Supreme Court Rules, 1980 are subservient to the 
Constitution have been discussed in later part of this judgment) It is to 
be noted that no Act of Parliament whatsoever has been promulgated 
and thus it can reasonably be inferred that legislature does not want to 
restrict or impose any condition on the powers conferred upon this 
Court under Article 188 of the Constitution. In fact the words “subject 
to the provisions of any Act of (Majlis-e-Shoora/Parliament) and of any 
rules made by the Supreme Court" are indicative of the fact that 
indirectly the powers so conferred have been enhanced and there was 
absolutely no intention for curtailment of such powers conferred upon 
this Court under Article 188 of the Constitution. The point under 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
27 
discussion has been examined by this Court in case titled Evacuee 
Trust Property Board v. Hameed Elahi (PLD 1981 SC 108) with the 
following observations:- 
“6. 
Nothing in these Rules shall be deemed to limit or 
otherwise affect the inherent powers of the Court to make 
such orders as may be necessary for the ends of justice or 
to prevent abuse of the process of the Court. Now, as we 
observe d, “a litigant should not suffer on account of the 
mistakes or errors of the Court, and the corollary of this 
principle is that the Court should have the inherent power 
to correct its errors. The said rule only clarifies in terms 
that this Court has the inherent power to make such orders 
as may be necessary for the ends of justice or to prevent 
abuse of the process of the Court.” There is no ambiguity 
about these words, and if the respondent’s plea be true, he 
has brought his case within the meaning of the said rule.  
 
Additionally, the said rule was not framed for first 
time by this Court. It is almost verbatim reproduction of 
section 151 of the Civil Procedure Code and of section 561-
A of the Criminal Procedure Code, and these two sections 
(which in turn are in pari materia with each other) have 
been part of our procedural laws for generations, so that 
there is no ambiguity about of our procedural laws for 
generations, so that there is no ambiguity about them, 
because they have been repeatedly construed by the 
superior Courts. Thus, for example, taking first, section 151 
of the Civil Procedure Code, the Indian Supreme Court held 
in Keshardeo Chamaria v. Radha Kissen Chamaria and 
others (AIR 1953 SC 23) that a Court could in the exercise 
of its powers under section 151 re-call an order passed by it 
without notice to the parties concerned. Next, as to section 
561-A of the Criminal Procedure Code this Court held in 
Gulzar Hassan Shah v. Ghulam Murtaza and 4 others (PLD 
1970 SC 335) that a Court was competent under section 
561-A to re-call an order passed by it without notice to the 
parties concerned. However, as this judgment was 
pronounced long after the rules of this Court had been 
framed in 1956, the case-law on section 561-A before 1950 
would be more relevant. We say 1950 and not 1956, 
because the said rule was originally enacted as rule 6 of 
Order LIII of the Federal Court Rules of 1950. And on the 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
28 
repeal of those rules of 1956, the same provision was re-
enacted in the present rules as the said rule.” 
 
26. 
 
We are conscious of the fact the principles of CPC also need 
to be examined and thus the provisions as enumerated in Order XLVII 
Rule 1 of CPC would require consideration qua its application which is 
reproduced herein below for ready reference:- 
“1. 
Application for review of judgment.- (1) Any 
person considering himself aggrieved— 
 
(a) 
by a decree or order from which an appeal is 
allowed, but from which no appeal has been preferred, 
 
(b) 
by a decree or order from which no appeal is 
allowed, or 
 
(c) 
by a decision on a reference from a Court of 
Small Causes, 
and who, from the discovery of new and important matter 
or evidence which, after the exercise of due diligence, was 
not within his knowledge or could not be produced by him 
at the time when the decree was passed or order made, or 
on account of some mistake or error apparent on the face 
of the record, or for any other sufficient reason, desires to 
obtain a review of the decree passed or order made against 
him, may apply for a review of judgment to the Court 
which passed the decree or made the order. 
(2) 
A party who is not appealing from a decree or order 
may apply for a review of judgment notwithstanding the 
pendency of an appeal by some other party except where 
the ground of such appeal is common to the applicant and 
the appellant, or when, being respondent, he can present 
to the Appellate Court the case on which he applies for the 
review.” 
 
27. 
 
 A bare perusal would reveal that the salient features of 
Order XLVII CPC are as under:- 
(i) 
discovery of new and important matter or evidence 
which after the exercise of due diligence, was not 
within his knowledge or could not be produced by 
the petitioner at the time when the decree was 
passed or order made; or 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
29 
(ii) 
on account of some mistake or error apparent on 
the face of the record; or 
(iii) 
for any other sufficient reason. [2003 CLC 1355) 
 
28. 
 
We have examined the salient features and grounds as 
enumerated in Order XLVII Rule 1 CPC and we are of the view in so far 
as these CMAs are concerned that neither there is discovery of new 
important fact nor some mistake or error has been pointed out and 
besides that no sufficient reasoning has been advanced on the basis 
whereof the principle as enunciated in Order XLVII Rule 1 CPC can be 
made applicable. It may not be out of place to mention here that 
“sufficient cause” is not susceptible of an exact definition and no hard 
and fast rule can be laid down to cover all possible cases. Each case 
must be judged upon its merits and its peculiar circumstances. The words 
“sufficient cause” mentioned in O. XLVII, R.1 of the Code do not mean 
any and every cause but it means any reason sufficient on ground at 
least analogous to those stated in the rule. The view that the “sufficient 
grounds” need not necessarily be construed ejusdem generic with the 
words preceding cannot be accepted as laying down the correct law.” 
Suruj Mian v. Asst. Manager, Govt. Acquired Estate (PLD 1960 Dacca 
1045). None of the grounds urged by the petitioners attracted the 
provisions as enumerated in Order XLVII CPC and thus CMAs cannot 
be declared competent. A similar proposition was examined in Yusuf Ali 
v. State (PLD 1971 SC 508) with the following observations:-   
 
“The right of review granted by Article 62 of the 
Constitution of 1962 is subject not only to the provisions of 
any Act of the Central Legislature but also to the provisions 
of any rules made by the Supreme Court and the Rules of 
the Court specifically provide by Order XXVI that “subject to 
the law and 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 1 of the Code and 
in a criminal proceeding on the ground of an error apparent 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
30 
on the face of the record”. Where none of the grounds urged 
by the petitioner come within the ambit of this rule no valid 
ground could be said to have been made out for the review 
of the judgment.” (Emphasis provided)  
 
29. 
 
It may be mentioned that the words “any other sufficient 
reasons” used in Order XLVII Rule (1) (c) CPC means a reason sufficient 
on grounds at least analogous to those mentioned in a categoric 
manner in clauses (a), (b), and (c) of Rule 1 of Order XLVII CPC. “A 
review, as has been pointed out by this Court in the case of Lt. Col. 
Nawabzada Mohammad Amir Khan v. The Controller of Estate Duty 
Government of Pakistan, Karachi and another (PLD 1962 SC 335) 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. It can 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 can be granted.” In this regard we are fortified by the dictum 
laid down in the following authorities:- 
i) 
Chhaju v. Neki (AIR 1922 PC 112),  
ii) 
Iftikhar Hussain Shah v. Azad Govt. of The State of J 
& K (PLD 1984 SC AJ&K 111),  
iii) 
Muhammad Ghaffar v. State (1969 SCMR 10)  
 
 
30. 
 
In our view decision once given cannot be reviewed subject 
to certain legal exceptions pursuant to the provisions as enumerated in 
Order XLVII Rule 1 CPC, scope whereof can neither be enlarged nor it 
can be farfetched in such a manner as argued by the learned ASCs for 
the petitioners in view of the language as employed in Order XLVII Rule 
1 CPC its application would be only upto that limited extent and it 
cannot be unlimited. As mentioned above, the powers of review are not 
wide but definite and limited in nature. “It has to be confined to the four 
corners of the relevant rules or the phrase or for any other sufficient 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
31 
reason even the review jurisdiction as visualized must be traced to 
Order XLVII which contains the prescribed conditions and limitations in 
terms of the requirement of the section and more so power to review is 
not an inherent power. 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 
and cannot be equated to that of a technical obstruction.” In this regard 
the case law as enunciated in the following cases can be referred:- 
Jalal Din v. Mohd. Akram Khan (PLD 1963 (WP) Lah. 596), 
Prahlad Krishna Kurne AIR 1951 Bom. 25, Hajee Suleman 
v. Custodian Evacuee Property (AIR 1955 Madhya Bharat 
108, Rukan Din and others v. Hafiz-ud-Din and another 
(PLD 1962 Lah. 161), Mohd. Amir Khan v. Controller of 
Estate Duty PLD (1962 SC 335) Abdul Jabbar v. Collector 
of Central Excise and Land Customs Review Application 
No.15 of 1959 (Quetta) unreported considered. 
 
31. 
 
Mr. Justice Pir Hamid (as he then was) while discussing the 
provisions as enumerated in Order XLVII Rule 1 CPC has opined that “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 
review may no doubt be granted to prevent remediable injustice being 
done by a court of last resort as where by some inadvertence an 
important statutory provision has escape 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.” (Emphasis 
provided). (Muhammad Amir Khan v. Controller of Estate Duty PLD 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
32 
1962 SC 335, Young v. Bristol Aeroplane Company Limited (1944) 1 K B 
718, Gower  v. Gower (1950) 1 A E R 804 distinguished).  
32. 
 
Mr. Justice Ghulam Mujaddid Mirza (as he then was) has 
also examined the provisions as enumerated in section 114 CPC and 
Order XLVII Rule 1 CPC in the light of dictum laid down in H. M. Saya 
& Co. Karachi v. Wazir Ali Industries Ltd. Karachi and another (PLD 
1969 SC 65) as under:- 
“2. 
I called upon Mr. K. H. Khurshid, learned counsel for 
the petitioners to first convince me as to how this petition 
was competent when the petitioners were not a party to the 
writ proceedings. Learned counsel submitted that as the 
petitioners had been adversely affected by the order of this 
Court dated the 5th of December 1973, they are, therefore, 
aggrieved persons and hence have a locus standi to file this 
petition in the present form. Learned counsel relied on PLD 
1971 SC 130, in order to prove that the petitioners were 
aggrieved persons but in my view this authority would not 
be of much help to him because in this case the question 
examined was as to who would be the person aggrieved 
within the ambit of Article 98 of the late Constitution of 
Islamic Republic of Pakistan whereas in the instant case the 
petitioners have to bring their case within the purview of 
Order XLVII, rule 1, C.P.C. Learned counsel tried to avail of 
section 114, C.P.C. which deals with the power of review 
and argued that the words “any person considering himself 
aggrieved” were wide enough to include even those persons 
who initially were not a party to the proceedings but at a 
later stage were affected by an order adverse to their 
interest. My attention was invited to Order XLVII, rule 1, 
C.P.C. and it was submitted that even in this provision the 
above mentioned words have been repeated, and the 
learned counsel, therefore, emphasized that these words 
would cover the case of even a stranger, the only essential 
requisite being that he must consider himself to be an 
aggrieved person, the test for which, according to the 
learned counsel would be subjective. Reliance was also 
placed on H.M. Saya & Co., Karachi  v.   Wazir Ali 
Industries Ltd. Karachi and another (PLD 1969 SC 65) with 
special reference to the following observations:-  
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
33 
There can be no dispute that the only party which 
was adversely affected by the order of ad interim injunction 
was respondent No.1. We are satisfied that Saya & Co., 
deliberately omitted to make them parties with the intention 
of avoiding a contest. They knew fully well that the relief 
sought were really directed against Wazir Ali Industries 
Limited, and their bankers. A stranger to a suit or a 
proceeding is not prohibited by the Code of Civil Procedure 
from filing an appeal from an order passed therein. It is true 
that there is no express provision permitting such party to 
prefer an appeal against such an order. This omission, 
however, cannot be understood to amount to prohibition. 
The Court ought not to act on the principle that every 
procedure is to be taken as prohibited unless it is expressly 
provided for. To give such a meaning to the omission would 
result in grave injustice. The facts of this case are clear 
example in point. The Court should proceed on the principle 
that every procedure which furthers administration of 
justice is permissible even if there is no express provision 
permitting the same. Section 96 of the Civil Procedure Code 
deals with appeals from decrees and section 104 deals with 
appeals from orders. These provisions do not in terms say 
who is entitled to prefer an appeal. The Code, however, lays 
down that it is the decree or the order that has to be 
appealed against.  If the decree or order appealed from 
adversely affects a person he should be permitted to 
challenge the same in appeal even if he was not made a 
party to the original suit for proceeding.” 
and it was argued that the principle laid down in this case 
was fully applicable to the present petition and hence not 
only that the petition was competent but also that the order 
dated the 5th of December 1973, of this Court deserves to be 
reviewed.  
3. 
I have very carefully gone through this decision and 
find that the law laid down by the Supreme Court is only 
with regard to the appellate proceedings, whereas the scope 
of review is much different and the review jurisdiction is 
substantially and materially different to the appellate 
jurisdiction, because it can be only utilized on the specific 
grounds mentioned in Order XLVII, rule 1, C.P.C. 
(Emphasis provided). In this connection it would be 
worthwhile to reproduce in extenso rule 1 of Order XLVII, 
C.P.C. which is to the following effect:- 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
34 
 
“(1) Any person considering himself aggrieved- 
(a) by a decree or order from which an appeal is allowed, 
but from which no appeal has been preferred,  
(b) by a decree or order from which no appeal is allowed, or  
(c) by a decision on a reference from a Court of Small 
Causes,  
and who, from the discovery of new and important matter or 
evidence which, after the exercise of due diligence, was not 
within his knowledge or could not be produced by him at 
the time when the decree was passed or order made, on 
account of some mistake or error apparent on the face of 
the record, or for any other sufficient reason, desires to 
obtain a review of the decree passed or order made against 
him may apply for a review of judgment to the Court which 
passed the decree or made the order.” 
The important words to be noted in this connection 
are “desires to obtain a review of the decree passed or order 
made”. These words leave no room for doubt that the 
remedy of review could be availed of only by a person who 
initially was a party to the proceedings in which either a 
decree had been passed or an order had been made against 
him, otherwise the very essence of the grounds on which a 
review would be competent, would be rendered ineffective. It 
is, therefore, obvious that a stranger to the proceedings 
would not be permitted to avail of the grounds on which a 
review petition would be competent. I, therefore, do not 
agree with the contention of the learned counsel that a 
wider interpretation of the words “any person considering 
himself aggrieved” would be the only proper and reasonable 
interpretation. On the other hand, I find that these words 
would have to be read and interpreted in the light of the 
main rule and when so done in my view their operation 
would be restricted and would cover the case of only those 
persons who initially were party to the proceedings.” 
(Emphasis provided). (Qaim Hussain v. Anjuman Islamia 
PLD 1974 Lah. 346).  
33. 
 
We have no reason to disagree with the said conclusion 
which also finds support from the case titled Muhammad Rafiq v. 
Marium Bibi (1996 SCMR 1867). In the said case “the petitioners filed 
review petition for review of the Court’s order dated 25.11.1991 passed 
in C.A.No.87 of 1987 and C.A.No.698 of 1990. The petition was returned 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
35 
to the petitioners with the observation that the review was placed before 
the Acting Chief Justice and his Lordship has been pleased to pass the 
following order:--- 
“Parties not before this Court when the judgment was 
passed cannot be permitted to file a review petition. This 
review petition cannot be entertained.”  
The petitioners, therefore, submitted an application for reconsideration 
under Order V, Rule 2 of the Supreme Court Rules which was heard by a 
Bench of three Judges (Mr. Justice Dr. Nasim Hasan Shah, C.J., Mr. 
Justice Saleem Akhtar and Mr. Justice Manzoor Hussian Sial) and held 
that “we do not think this is a fit case for reconsideration of the earlier 
order refusing to entertain the review petition.”(Order dated 14.2.1994 
passed in C.M.A. No.1-L of 1992). In the case of Lt. Col. Nawabzada 
Muhammad Amir Khan v. The Controller (PLD 1962 SC 335) it was held 
that even if there be material irregularity but there is no substantial 
injury consequent thereon, the exercise of power of review to alter the 
judgment would not necessarily be required as the irregularity must be of 
such a nature as converts the process from being one in aid of justice to a 
process that brings about injustices. In the same case it was held that to 
permit a review on the ground of incorrectness would amount to granting 
the Court the jurisdiction to hear appeals against its own judgments. In 
the case of Raja Prithwi Chand Lal Chodhry v. Sukhraj Rai and others 
(AIR 1941 FC 1) it was observed that the Federal 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 to be aggrieved by the decision and that the Federal Court will 
exercise its power of review for the purpose of rectifying mistakes which 
have crept in.(Emphasis provided). In the case of Syed Muhammad Zaki 
v. Maqsood Ali Khan (PLD 1976 SC 308) it was observed that merely 
because a decision of case is erroneous per se is not a ground to justify 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
36 
its review for what would seriously impair the finality attaching to the 
judgment of this Court which allowed the apex of the judicial system, but 
if there be found a material irregularity in the decision which converts the 
process from being one in aid of justice to a process which brings about 
injustice, or if the decision is in conflict with the law of the land then it 
would be the duty of the Court to mend the error.” It is well settled by 
now that “where the decision sought to be reviewed is a conscious and 
deliberate decision for which full reasons are given in the impugned 
judgment. The petitioner may or may not agree with those reasons. But 
where a conscious and deliberate decision had been made with regard to 
the nature of orders which it was empowered to pass under a provision 
of law only because another view with regard thereto was canvassed 
could not and did not constitute a ground for review.” (Muhammad 
Saifullah Khan v. Federation of Pakistan PLD 1990 SC 79). 
34. 
 
The CMAs have been argued in oblivion of the fact that 
“right of appeal and review are not analogous as an appeal is, review is 
not the continuation of same proceedings, a person not party to 
proceeding has no right to file review. The two sub-rules of R.1 read 
together lead to this conclusion. Sub-rule (2) begins with the words “party 
who is not appealing. Sub-rule (1), no doubt, begins with the words “any 
person considering himself aggrieved.” But R.(1), read as a whole 
persuade to take the view that a the words “a party who is not 
appealing” cannot be kept confined to sub-r (2) alone and cannot but we 
read in sub-r (1) also for the sake of consistency, so that the expression 
“person” in the opening words of sub-r(1) can only mean a person who is 
a party in the concerned suit or proceeding. A person who is a stranger to 
a suit or proceeding cannot be a person aggrieved by the decision in the 
suit or proceeding.” (Emphasis provided). (Khan Muhammad v. Injuman 
Islamia 1987 CLC 1911). 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
37 
35. 
 
On the touchstone of the criterion as laid down in the above 
mentioned cases we are firmly of the view that allowing the review 
applications would not be in aid of justice and besides that the 
judgment impugned is not in conflict with the Constitution or law of the 
land in any manner and hence no lawful justification is available for its 
review as it has protected, preserved and defended the Constitution 
being supreme law of the land. 
36. 
 
After having discussed Article 188 of the Constitution, 
Order XXVI Rule 1 of the Supreme Court Rules and Order XLVII Rule 1 
CPC, now we intend to discuss the point as canvassed at bar that the 
Supreme Court Rules are subservient to the Article 188 of the 
Constitution by which unbridled powers qua review has been conferred 
upon this Court. In order to appreciate the said point of view it seems 
proper to examine the provisions as enumerated in Article 188 of the 
Constitution from another angle to determine i.e. the legal status of the 
Supreme Court Rules. The language as employed in Article 188 of the 
Constitution is very plain and simple and there is absolutely no 
confusion on the basis whereof different interpretation could be made. 
“A fundamental principle of constitutional construction has always been 
to give effect to the intent of the framers of the organic law and of the 
people adopting it. As has been aptly observed, “the pole star in the 
construction of a Constitution is the intention of its makers and 
adopters.” When the language of the statute is not only plain but admits 
of but one meaning, the task of interpretation can hardly be said to 
arise. It is not allowable to interpret what has no need of interpretation. 
Such language best declares, without more, the intention of the law-
givers, and is decisive of it. The rule of construction is “to intend the 
Legislature to have meant what they have actually expressed”. It matters 
not, in such a case, what the consequences may be. Therefore if the 
meaning of the language used in a statute is unambiguous and is in 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
38 
accord with justice and convenience, the Courts cannot busy themselves 
with supposed intentions, however admirable the same may be, 
because, in that event they would be travelling beyond their province 
and legislating for themselves. But if the context of the provision itself 
shows that the meaning intended was somewhat less than the words 
plainly seem to mean then the Court must interpret that language in 
accordance with the indication of the intention of the Legislature so 
plainly given.” (Shah Jahan Begum v. Baloch PLD 1975 Lahore 390, Faiz 
Muhammad v. Soomar PLD 1972 Karachi 459), Abdul Hameed v. 
Municipal Committee PLD 1973 Lahore 339). It may be kept in view that 
“the first and primary rule of construction is that the intention of the 
Legislature must be found in the words used by the Legislature itself. If 
the words used are capable of one construction only then it would not 
be open to the Courts to adopt any other hypothetical construction on 
the ground that such hypothetical construction is more consistent with 
the alleged object and policy of the Act.” (Ahmad Hassan v. Govt. of 
Punjab 2005 SCMR 186). The judicial consensus seems to be that “the 
essence of law lies in its spirit, not in its letter, for the letter is significant 
only as being the external manifestation of the intention that underlies it. 
Nevertheless in all ordinary cases the Courts must be content to accept 
the litera legis as the exclusive and conclusive evidence of the sententia 
legis. They must, in general, taken it absolutely for granted that the 
Legislature has said what it meant, and meant what it has said. Ita 
scriptumest is the first principle of interpretation. Judges are not at liberty 
to add to or take from or modify the letter of the law simply because they 
have reason to believe that the true sententia legis is not completely or 
correctly expressed by it. That is to say, in all ordinary cases grammatical 
interpretation is the sole form allowable. It is no doubt true that the felt 
necessities of the times must, in the last analysis, affect every judicial 
determination, for the law embodies the story of a nation’s development 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
39 
through the centuries and it cannot be dealt with as if it contains only 
axioms and corollaries of a book of mathematics. A Judge cannot stand 
aloof on chill and distant heights. The great tides and currents which 
engulf the rest of men, do not turn aside in their course and pass the 
Judge by. But at the same time, the Judge must remember that his 
primary function is to interpret the law and to record what the law is. He 
cannot allow his zeal, say, for social or agrarian reform, to overrun his 
true function. He does not run a race with the Legislature for social or 
agrarian reform. His task is a more limited task; his ambition a more 
limited ambition. Of course in this process of interpretation he enjoys a 
large measure of latitude inherent in the very nature of judicial process. In 
the skeleton provided by the Legislature, he pours life and blood and 
creates an organism which is best suited to meet the needs of society and 
in this sense he makes and moulds the law in a creative effort. But he is 
tied by the basic structure provided by the Legislature which he cannot 
alter and to appeal to the spirit of the times or to the spirit of social or 
agrarian reforms or for the matter of that any other reform for the purpose 
of twisting the language of the Legislature is certainly a function which he 
must refuse to perform. 
 
The words of a statute must, prima facie, be given their ordinary 
meaning. We must not shrink from an interpretation which will reverse 
the previous law; for the purpose of a large part of our statue law is to 
make lawful that which would not be lawful without the statute, or, 
conversely, to prohibit results which would otherwise follow. Judges  are 
not called upon to apply their opinions of sound policy so as to modify the 
plain meaning of statutory words but where, in construing general words 
the meaning of which is not entirely plain there are adequate reasons for 
doubting whether the Legislature could have been intending so wide an 
interpretation as would disregard fundamental principles, then we may 
be justified in adopting a narrower construction. At the same time, if the 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
40 
choice is between two interpretations the narrower of which would fail to 
achieve the manifest purpose of the legislation, we should avoid a 
construction which would reduce the legislation to futility and should 
rather accept the bolder construction based on the view that Parliament 
would legislate only for the purpose of bringing about an effective result”. 
(Ahmad Hassan v. Govt. of Punjab 2005 SCMR 186).  The 
above 
mentioned principles of interpretation have been followed in the 
following authorities:- 
Viscountess Rhonda’s Claim, (1922) 2 AC 339, p.365 by 
Viscount Birkenhead, LC; Jurisprudence at p.152, 11th 
Edn.; Motilal v. L.T. Comr, AIR 1951 Nag. 224, 225; 
Thakorelal Amritlal Vaidya v. Gujarat Revenue Tribunal AIR 
1964, Guj. 183, 187; Maxwell in Interpretation of Statues, 
p.7 10th Edn. Satyanarain v. Buishwanth AIR 1957 Pat. 
550, 554; Nokes v. Doneaster Amalgamated Collieries 
(1940) AC, pp. 1014, 1022; Kanai Lal v. Parannidhi 1958 
SCR 360; 367 AIR 1957 SC 907; 910-11; Municipal Board, 
Rajasthan v. S.T.A.Rajasthan AIR 1955 SC 458, 464; 
Bootamal v. Union of India, AIR1962 SC 1716, 1718, 1719; 
Sirajul Haq v. S.C. Board  AIR 1959 SC 205; (1857) 6 HL 
Cas 61; 26 Lt. Ch. 473; 1901 AC, at pp. 102, 107 Collector 
of Customs, Baroda v. Digvijayasinhji and others Mills AIR 
1961 80 1549, 1551; Shri Ram v. State of Maharashtra, AIR 
1961 SC 674, 678; AIR 1950 SC 165, 168; Madan Lal v. 
Changdeo Sugar Mills, AIR 1958 Bom. 491, 495; AIR 1954 
SC 749; (1955) 1 SCR 829, 836-7; AIR 1955 SC 376, 381; 
AIR 1955 SC 504; Kanai Lal v. Parannidhi 1958 SCR 360, 
367, AIR 1957 SC 907, 910-11; Municipal Board, Rajasthan 
v. S.T.A. Rajasthan AIR 1955 SC 458,464; Jamat-i-Islami v. 
Federation of Pakistan PLD 2000 SC 111; Muhammad Iqbal 
v. Government of Punjab PLD 1999 Lah. 109, Province of 
East Pakistan v. Noor Ahmad PLD 1964 SC 451, Collector of 
Sales Tax v. Superior Textile Mills Ltd. PLD 2001 SC 600; 
Shujat Hussain  v. State 1995 SCMR 1249; Province of 
Punjab v.  Munir Hussian Shah 1998 SCMR 1326; 
Interpretation of Statues 7th Edn. 1984 by Dr. Tahir 
Mahmood; understanding Statutes Canons of Construction, 
2nd Edn. By S.M. Zafar; The Interpretation of Statutes by M. 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
41 
Mahmood and Craies on Statues Law, 7th Edn. by S.G.G. 
Edgar. 
 
37. 
 
In view of the above discussed principles of interpretation it 
seems immaterial to discuss whether Supreme Court Rules are 
subservient to Article 188 of the Constitution for the simple reason that 
the main object to enact Article 188 of the Constitution was to enhance 
the power of review conferred upon this Court and in order to achieve 
this object it has been provided specifically in the Article itself that such 
power would be subject to “any rules made by the Supreme Court” 
meaning thereby that it was entirely left to this Court that how and in 
what manner such power is to be regulated and exercised. We are 
conscious of the fact that “it cannot be said that an unlimited right of 
delegation is inherent in the legislative power itself. This is not 
warranted by the provisions of the Constitution and the legitimacy of 
delegation depends entirely upon its being used as an ancillary measure 
which the Legislature considers to be necessary for the purpose of 
exercising its legislative powers effectively and completely. The 
Legislature must retain in its own hands the essential legislative 
functions which consist in declaring the legislative policy and laying 
down the standard which is to be enacted into a rule of law, and what 
can be delegated is the task of subordinate legislation which by its very 
nature is ancillary to the statute which delegates the power to make it.” 
(Ahmad Hassan v. Govt. of Punjab 2005 SCMR 186). There is no denial 
of the fact that Courts are creatures of the Constitution; they derive 
their powers and jurisdictions from the Constitution and must confine 
themselves within the limits set by the Constitution but it hardly needs 
any elucidation that it is the right of the judiciary to interpret the 
Constitution and determine as to what a particular provision of the 
Constitution means or does not mean even if it is a provision seeking to 
oust its own jurisdiction. In this regard reference can be made to the 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
42 
case of Federation of Pakistan v. Saeed Ahmad PLD 1974 SC 151), Pak. 
v. Saeed (PLJ 1974 SC 77). 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 statue, if are inconsistent with the provisions of the statute and defeat 
the intention of Legislature expressed in the main statue, 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 said principle of interpretation has been 
followed in the under mentioned cases:-  
Ahmad Hassan v. Govt. of Punjab 2005 SCMR 186, Institute of 
Patent Agents v. Lackwood (1894) AC 347, 359, 360, 364, 365; 
Cf. London Traffic Act, 1924, S. 10(3), Land Realization Co. Ltd. 
v. Postmaster-General (1950) 66 TLR (Pt.1) 985, 991 per 
Romer, J. (1950) Ch. 435), 1951 SCR 747, Harilal v. Deputy 
Director of Consolidation 1982 All LJ 223, Chief Inspector 
Mines v. K.C. Thapar AIR 1961 SC 838, 845, Narasimha Raju 
v. Brundavanasaha  AIR 1943 Mad. 617, 621, Aribam Pishak 
Sharma v. Aribam Tuleswar Sharma AIR 1968 Manipur 74, 
Quoted James, LJ in Ex parte Davies (1872) 7 Ch. A. 526, 529. 
“New Sindh”, AIR 1942 Sindh 65, 71, Barisal Cooperative 
Central Bank v. Benoy Bhusan AIR 1934 Cal.537, Municipal 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
43 
Corporation v. Saw Willie AIR 1942 Rang. 70, 74, Hazrat Syed 
Shah Mustarshid Ali Al-Quadari v. Commissioner of Wakfs AIR 
1954 Cal.436, Shankar Lal Laxmi Narayan Rathi v. Authority 
under 
Minimum 
Wages 
Act 
1979 
MPLJ 
15, 
M.P. 
Kurmaraswami Raja AIR 1955 Mad. 326, K. Mathuvadivela v. 
RT Officer AIR 1956 Mad. 143, Kashi Prasad Saksena v.State of 
U.P. AIR 1967 All. 173, PLD 1975 Azad J&K 81, PLD 1966 Lah. 
287, Shanta Prasad v. Collector, Nainital 1978 All. LJ 126, 
Dattatraya Narhar Pitale v. Vibhakar Dinka Gokhale 1975 Mah. 
LJ 701, Narayanan v. Food Inspector, Calicut Corporation 1979 
Ker LT 469, Ganpat v. Lingappa AIR 1962 Bom. 104,105, 
Adarash Industrial Corporation v. Market Committee, Karnal 
AIR 1962 Punj. 426, 430 by Tek Chand, J, Devjeet v. Gram 
Panchayat AIR 1968 Raj LW 231, Shri Synthetics, Ltd, Ujjain v. 
Union of India 1982 Jab LJ 279, 1982 MPLJ 340, Central Bank 
of India v. Their Workmen AIR 1960 SC 12, Barisal Cooperative 
Central Bank v. Benoy Bhusan AIR 1934 Cal.537, 540, Rajam 
Chetti v. Seshayya ILR 18 Mad. 236, 245, Raghanallu Naidu v. 
Corporation of Madras AIR 1930 Mad. 648, Pakistan v. Aryan 
Petro Chemical Industries (Pvt.) Ltd. 2003 SCMR 370, Ziauddin 
v. Punjab Local Government 1985 SCMR 365, Hirjina Salt 
Chemicals (Pak) Ltd. v. Union Council Gharo 1982 SCMR 522, 
Mehraj Flour Mills v. Provincial Government 2001 SCMR 1806, 
Collector of Sales Tax v. Superior Textile Mills Ltd. PLD 2001 
SC 600. 
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. 
38. 
 
Now we intend to discuss the question as to whether 
issuance of notice to the applicants was mandatory? Before we could 
answer this question, another question would arise here at this 
juncture as to whether the former question needs any reply for the 
simple reason that it has been dilated upon, discussed and determined 
in a comprehensive manner in the judgment impugned, relevant portion 
whereof is reproduced herein below for ready reference:- 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
44 
“146.    However, we did not issue notices to the concerned 
Judges of the Supreme Court and High Courts who made 
oath in violation of the order dated 3rd November, 2007 
passed by a seven-member Bench of this Court in 
Wajihuddin Ahmed’s case, as also the Judges who were 
appointed in consultation with Abdul Hameed Dogar, J, 
inter alia, on a consideration of the law laid down in 
Supreme Court Bar Association’s case where this Court 
examined the question of issuance of notice in a somewhat 
similar situation with reference to the law laid down in the 
cases of Al-Jehad Trust and Asad Ali (supra) and Ghulam 
Hyder Lakho v. Federation of Pakistan  (PLD 2000 SC 179). 
It was held that the principle of natural justice would not be 
violated if no notices were issued to the concerned Judges. 
Relevant portion from the judgment is reproduced below:- 
“32. 
This brings us to the next common contention 
that the senior Judges of the Lahore High Court were 
condemned unheard and even in these petitions 
notices have not been issued to them. It is rather 
unnecessary to consider the contention as we have 
already held that the recommendations of the judicial 
consultee are not justiciable. Be that as it may, the 
contention is misconceived. The recommendations in 
questions 
were 
manifestation 
of 
subjective 
satisfaction of the judicial consultee, therefore, the 
principle of natural justice ‘audi alteram partem’  was 
not attracted. Moreover, the contention in essence is 
identical with contentions Nos.(iv) and (vii) raised in 
the case of Ghulam Hyder Lakho which read as 
under:- 
 
“(iv) 
That the petitioners were de-notified or the 
appointments were nullified by the Government 
without hearing them and as such the action of 
Government nullifying their appointments as Judges 
of the High Court offended against the principles of 
natural justice.” 
 
“(vii) That the removal of the petitioners from the 
office of Judges of the High Court in the above 
manner amounted to a stigma and as such the 
petitioners were entitled to be heard.” 
 
 
The above contentions were held to be devoid of force 
as is evident from the following observations at page 196 of 
the judgment:-- 
“In these circumstances, we are inclined to 
hold that where the Chief Justice of the High Court 
concerned and the Chief Justice of Pakistan do not 
recommend a particular incumbent for confirmation 
or appointment as a Judge of the High Court and 
these 
recommendations 
are 
accepted 
by 
the 
President/Executive the same cannot be brought 
under challenge in the Court on the ground that the 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
45 
incumbent was not heard before making such 
recommendations.” 
 
33. 
 
As regards the question of notices we are of 
the considered view that issuance of notices to the 
concerned Judges will do more harm than good. This 
question was considered in the Judges’ case also and it was 
clearly held at page 534 of the judgment that the principle 
of natural justice is not violated if notice is not issued to the 
concerned Judges. The observations in Asad Ali’s case at 
page 327 of the judgment are also relevant which read as 
under:- 
 
“It must be borne in mind that Judges of 
superior Courts by their tradition, maintain high 
degree of comity amongst themselves. They are not 
expected to go public on their differences over any 
issue. They are also not expected to litigate in Courts 
like ordinary litigant in case of denial of a right 
connected with their offices. Article VI of the Code of 
Conduct signed by every Judge of the Superior 
Courts also enjoins upon them to avoid as far as 
possible any litigation on their behalf or on behalf of 
others. Therefore, in keeping with the high tradition 
of their office and their exalted image in the public 
eye, the Judges of superior Courts can only express 
their disapproval, resentment or reservations’ on an 
issue either in their judgment or order if the 
opportunity so arises…..” 
 
39. 
 
In the light of what has been reproduced herein above, the 
only inescapable conclusion would be that issuance of notice was not 
necessary. We may point out that some of the petitioners have taken the 
plea that they were unaware of the Supreme Court order of 3.11.2007. 
They have, therefore, contended that the finding in the judgment of 
31.7.2009, which holds that they had knowledge of the order amounts 
to denial of the rule of natural justice and as a consequence they will be 
prejudiced in the proceedings to be initiated under article 209 of the 
Constitution. On this point, it may be noted that the petitioners are 
silent as to when the petitioners got knowledge of the order and what 
they did thereafter to show respect and obedience to the same. It is an 
admitted feature of the case that the judgment impugned has not been 
challenged and what is claimed is re-hearing in the interest of natural 
justice in oblivion of the fact that all the questions required to be re-
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
46 
heard have been dealt with in the judgment impugned after having 
taken into consideration each and every aspect of the controversy. The 
provision qua review in fact is not meant for getting the matter re-heard. 
In this regard reference can be made to case titled Abdul Hamid Saqfi v. 
Service Tribunal of Pakistan (1988 SCMR 1318). No doubt that the 
petitioners are dissatisfied but this does not constitute a valid ground 
for review. (Nawab Bibi v. Hamida Begum 1968 SCMR 104, Abdul 
Majeed v. Chief Settlement Commissioner 1980 SCMR 504, Rashid 
Ahmed v. Irshad Ahmed 1968 SCMR 12). We may make it clear that a 
mere desire for rehearing of the matter does not constitute a valid cause 
and sufficient ground for the grant of review. In this regard we are 
fortified by the dictum laid down in the following authorities:- 
Abdul Hameed Saqfi v. Service Tribunal of Pakistan (1988 
SCMR 1318), Ali Khan v. Shah Zaman (1980 SCMR 332),   
Abdul Majeed v. Chief Settlement Commissioner (1980 SCMR 
504), Maqbool Ahmed Tabassum v. The State (1980 SCMR 907), 
Zulfiqar Ali Bhutto v. The State (PLD 1979 SC 741), Nawab Bibi 
v. Hamida Begum  (1968 SCMR 104), Muhammad Najibullah 
Khan v. Govt. of Pakistan (1968 SCMR 768), Muhammad 
Ghaffar v. The State  (1969 SCMR 12), Ghulam Fatima v. 
Settlement Commissioner (1969 SCMR 5), Feroze Din v. Allah 
Ditta (1969 SCMR 10). 
40. 
 
It is also an admitted legal position that “reversing an 
action taken initially without issuing a show-cause notice was not a 
principle of universal application. Undoing of such an act was also 
refused where the facts leading to the impugned action were 
uncontrovertible and admitted and where despite a prior hearing, the 
results could and would not have been any different. Reliance is placed 
on the following authorities:- 
S.L.Kapoor v. Jagmohan and others AIR 1981 SC 136, 
Muhammad Ishaq v. Said-ud-Din PLD 1959 Kar. 669, 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
47 
Abdul Haq Indhar and others v. Province of Sindh and 
others 2000 SCMR 907.”  
Besides the reasoning as given above, it may not be lost sight of that the 
applicants were never made respondents in Const. Petition No.9 of 2009 
and Const. Petition No.8 of 2009 and no specific relief whatsoever was 
sought against them in person. The removal of the applicants is fall out 
of the judgment impugned which cannot be questioned individually. 
41. 
 
No stricture was passed qua their eligibility, integrity, 
entitlement, qualifications and besides that their removal from the office 
of Judges does not amount to be a stigma and therefore, the doctrine of 
‘audi alteram partem’ argued with vehemence cannot be pressed into 
service which otherwise is not universally recognized due to certain 
limitations. Let us examine the doctrine itself which was referred to 
time and again by the learned ASC on behalf of petitioners. “In Seneca’s 
Medea, it is said: “a judge is unjust who hears but one side of a case, 
even though he decides it justly”. Based on this, has been developed 
“Audi alteram partem” as a facet of natural justice”. (Seneca Medea 4 
BC-AD 65).  ‘Audi alteram partem’ means hear the other side; hear both 
sides. Under the rule, a person who is to decide must give the parties an 
opportunity of being heard before him and fair opportunity to those who 
are parties in the controversy for contradicting or correcting anything 
prejudicial to their view.” (emphasis provided). (Union of India v. 
Tulsiram Patel AIR 1985 SC 1416 at p.1460). The petitioners were 
admittedly not a party in the main controversy. “Since the audi alteram 
partem rule is intended to inject justice into the law, it cannot be applied 
to defeat the ends of justice, or to make the law lifeless, absurd, 
stultifying, self-defeating or plainly contrary to the common sense of the 
situation. ‘Audi alteram partem’ rule as such is not cast in a rigid mould 
and judicial decisions establish that it may suffer situational 
modifications.” (Emphasis provided). (Maneka Gandhi v. Union of India 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
48 
AIR 1978 SC 597). It may not be out of place to mention here that by 
now it is well established that “where a right to a prior notice and an 
opportunity to be heard before an order is passed would obstruct the 
taking of prompt action, such a right can be excluded. Thus, the rule may 
be discarded in an emergent situation where immediate action brooks no 
delay to prevent some imminent danger or injury or hazard to paramount 
public interests.” (Swadeshi Cotton Mills v Union of India AIR 1981 SC 
818, (1981) 51 Comp Cas 210 SC, (1981) 2 SCR 533. Note: Decisions in 
Maneka Gandhi v Union of India AIR 1978 SC 597, (1978) 1 SCC 248, 
Mohinder Sindh Gill v The Chief Election Commissioner AIR 1978 SC 
851, (1978) 1 SCC 405, Union of India v Tulsiram Patel AIR 1985 SC 
1416, (1985) 3 SCC 398. The ‘audi alteram partem’ rule would be 
excluded, if importing the right to be heard has the effect of paralyzing 
the administrative process or the need for promptitude or the urgency 
of the situation so demands. (Pearlberg v Varty (Inspector of Taxes), 
[1971] 1 WLR 728 (CA), [1971] 2 All ER 552 (CA). A prima facie right to 
opportunity to be heard may be excluded by implication in the following 
cases:- 
(i)  
When an authority is vested with wide discretion  
(H.W.R. Wade & C.F. Forsyth: Administrative Law, 7th Ed., at p.391 
H.W.R. Wade & C.F. Forsyth: Administrative Law, 7th Ed., at p.392) 
 
(ii)  
When the maxim ‘expressio unius est exclusio alterius’ is involved  
(Colquhoun v Brooks 21 QBD 52 at p. 62 
Humphrey’s Executor v. United States (1935) 295 US 602) 
 
(iii)   Where absence of expectation of hearing exists  
(Y.G. Shivakumar v B.M. Vijaya Shankar (1992) 2 SCC 207, AIR 1992 
SC 952) 
 
(iv) 
When compulsive necessity so demands 
(Union of India v. W.N.Chadha (supra)    
(v)  
When nothing unfair can be inferred  
 
(Union of India v. W.N.Chadha (supra)    
 
(vi) 
When advantage by protracting a proceeding is tried to be reaped  
(Ram Krishna Verma v State of U.P. (1992) 2 SCC 620, AIR 1992 SC 
1888). 
 
(vii) 
When an order does not deprive a person of his right or liberty  
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
49 
(Indian Explosive Ltd. (Fertiliser Division), Panki, Kanpur v State of 
Uttar Pradesh (1981) 2 Lab LJ 159) 
 
(viii) In case of arrest, search and seizure in criminal case 
(Union of India v W.N. Chadha 1993 Cr LJ 859, 1993 Supp (4) SCC 
260, AIR 1993 SC 1082) 
 
(ix) 
In case of maintaining academic discipline  
 
(1992) 2 SCC 207) 
(x) 
In case of provisional selection to an academic course  
(S.R. Bhupeshkar v Secretary, Selection Committee, Sarbarmathi 
Hostel, Kilpauk, Medical College Hostel Campus, Madras AIR 1995 Mad 
383 (FB) 
 
(xi) 
In case of enormous malpractices in selection process  
(Biswa Ranjan Sahoo v  Sushanta Kumar Dinda (1996) 5 SCC 365, AIR 
1996 SC 2552) 
 
42. 
 
It must not be lost sight of that in the above mentioned 
“exclusionary cases, the ‘audi alteram partem’ rule is held inapplicable 
not by way of an exception to fair play in action but because nothing 
unfair can be inferred by not affording an opportunity to present or 
meet a case.” (Maneka Gandhi v Union of India AIR 1978 SC 597, 
(1978) 1 SCC 248. vide also Mohinder Singh Gill v The Chief Election 
Commissioner AIR 1978 SC 851, (1978) 1 SCC 405.  The doctrine of 
‘audi alteram partem’ is further subject to maxim nemo inauditus 
condemnari debet contumax’. Therefore, where a person does not appear 
at appropriate stage before the forum concerned or is found to be 
otherwise defiant the doctrine would have no application. It is also to be 
kept in view that “application of said principle has its limitations. Where 
the person against whom an adverse order is made has acted illegally 
and in violation of law for obtaining illegal gains and benefits through 
an order obtained with mala fide intention, influence, pressure and 
ulterior 
motive 
then 
the 
authority 
would 
be 
competent 
to 
rescind/withdrawn/cancel such order without affording an opportunity 
of personal hearing to the affected party. Said principle though was 
always deemed to be embedded in the statute and even if there was no 
such specific or express provision, it would be deemed to be one of the 
parts of the statute because no adverse action can be taken against a 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
50 
person without providing right of hearing to him. Principle of audi 
alteram partem, at the same time, could not be treated to be of 
universal nature because before invoking/applying the said principle 
one had to specify that the person against whom action was 
contemplated to be taken prima facie had a vested right to defend the 
action and in those cases where the claimant had no basis or 
entitlement in his favour he would not be entitled to protection of the 
principles of natural justice.” (Nazir Ahmad Panhwar v. Govt. of Sindh 
thr. Chief Secy. Sindh 2009 PLC (CS) 161, Abdul Haque Indhar and 
others v. Province of Sindh through Secretary Forest, Fisheries and 
Livestock Department, Karachi and 3 others 2000 SCMR 907 and 
Abdul Waheed and another v. Secretary, Ministry of Culture, Sports, 
Tourism and Youth Affairs, Islamabad and another 2002 SCMR 769). It 
has been elucidated in the detailed reasoning of the judgment of 
31.7.2009 how the order passed by a seven Member Bench of this 
Court has been flagrantly violated. Besides that the applicants had no 
vested right to be heard and furthermore they have acted illegally and in 
violation of the order of seven Member Bench for obtaining illegal gains 
and benefits which cannot be ignored while examining the principle of 
‘audi alteram partem’. 
43. 
 
Now let us discuss the concept of natural justice which has 
been addressed repeatedly by almost all the learned counsel on behalf 
of the applicants. In India, the concept of natural justice was discussed 
in the case of “Swadeshi Cotton Mills v. Union of India (AIR 1981 SC 
818) and R.S. SARKARIA, J, speaking for himself and on behalf of D.A. 
DESAI, J, observed:  
‘The phrase is not capable of a static and precise definition. 
It cannot be imprisoned in the straight-jacket of a cast-iron 
formulae. Historically, “natural justice” has been used in a way 
“which implies the existence of moral principles of self-evident and 
unarguable truth”, “Natural justice” by Paul Jackson, 2nd Edn., 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
51 
page 1. In course of time, judges nurtured in the traditions of 
British Jurisprudence, often invoked it in conjunction with a 
reference to “equity and good conscience”. Legal experts of earlier 
generations did not draw any distinction between “natural justice” 
and “natural law”. “Natural Justice” was considered as “that part 
of natural law which relates to the administration of justice”.’  
In Maclean v. The Workers’ Union, MAUGHAM, J. observed that 
justice, and with it ‘natural justice’, is in truth an elaborate and artificial 
product of civilization which varies with different civilisations. BLACK, J 
in Green v Blake remarked that ‘natural justice’ understandably meant 
no more than ‘justice’ without the adjective. But what is ‘justice’? It is a 
question which has been asked for thousand of years by distinguished 
scholars and men of eminence. Socrates asked it 2000 years ago, and 
never got a satisfactory answer. LORD DENNING said: 
‘Justice isn’t something temporal-it is eternal-and the 
nearest approach to a definition that I can give is, “Justice is what 
the right thinking members of the community believe to be 
fair.”(Emphasis provided)  
44. 
 
It is also well acknowledged by now that “rules of natural 
justice are principles ingrained into the conscience of men. Justice being 
based substantially on natural ideals and human values, the 
administration of justice here is freed from the narrow and restricted 
considerations which are usually associated with a formulated law 
involving linguistic technicalities and grammatical niceties. Rules of 
natural justice are not embodied rules. Being means to an end and not 
and end in themselves, it is not possible to make an exhaustive catalogue 
of such rules. “The principles of natural justice”, said SIR RAYMOND 
EVERSHED, MR, “are easy to proclaim, but their precise extent is far less 
easy to define.” (Swadeshi Cotton Mills v Union of India AIR 1981 SC 
818, (1981) 51 Comp Cas 210 SC, (1981) 2 SCR 533., Abbott  v.  
Sullivan [1952] 1 KB 189, [1952] 1 All ER 226), [1929] 1 Ch 602; [1929] 
All ER Rep 468, [1948] IR 242, ‘Constitutional Developments in Britian’, 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
52 
BY LORD DENNING as published in The Fourteenth Amendment, [A 
Century in American Law and Life], Centennial Volume, Edited by 
Bernard Schwartz) The concept of natural justice is a combination of 
certain rules i.e. ‘audi alteram partem’ (nobody should be condemned 
unheard) and discussed in depth in preceding paragraphs and ‘nemo 
judex in re sua’ (nobody should be a Judge in his own case or cause) 
application whereof is to be decided by the Court itself in accordance 
with the fact, circumstances, nature of the case vis-à-vis the law 
applicable on the subject. It squarely falls within the jurisdictional 
domain of the Court concerned whether it would be necessary to 
embark upon the concept of natural justice and whether it would be 
inevitable for the just decision of the case. The Court is not bound to 
follow such rules where there is no apprehension of injustice. It can be 
said with certainty that the concept of natural justice is flexible and it 
cannot be rigid because it is the circumstances of each case which 
determine the question of the applicability of the rules of natural 
justice. “There are a number of cases in India in which the flexibility of 
the rules of natural justice has been upheld. In New Parkash Transport 
Co. Ltd. v. New Sawarna Transport Co. Ltd., the Supreme Court 
observed that rules of natural justice vary with varying constitutions of 
statutory bodies and the rules prescribed by the legislature under 
which they have to act, and the question whether in a particular case 
they have been contravened must be judged not by any preconceived 
notion of what they may be but in the light of the provision of the 
relevant Act. While natural justice is universally respected, the standard 
vary with situations contacting into a brief, even post-decisional 
opportunity, or expanding into trial-type trappings. As it may always be 
tailored to the situation, minimal natural justice, the bares notice, 
‘littlest’ opportunity, in the shortest time, may serve. In exceptional 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
53 
cases, the application of the rules may even be excluded.” A few other 
important cases which may be referred to are as under:-  
Suresh Koshy George  v  University of Kerala AIR 
1969 SC 198, (1968) 2 SCWR 117, Union of India  v Col. 
J.N. Sinha AIR 1971 SC 40, (1971) 1 SCR 791, A.K. Kraipak 
v Union of India AIR 1970 SC 150, (1970) 1 SCR 457, (1969) 
2 SCC 262, (1969) 1 SCA 605, Swadeshi Cotton Mills  v  
Union of India AIR 1981 SC 818, (1981) 2 SCR 533, (1981) 
51 Comp CAs 210 (SC), J. Mahapatra & Co. v State of 
Orissa AIR 1984 SC 1572, (1985) 1 SCR 322, Smt. Maneka 
Gandhi  v Union of India AIR 1978 SC 597, (1978) 1 SCC 
248. AIR 1957 SC 232, Mohinder Singh Gill v The Chief 
Election Commissioner, New Delhi AIR 1978 SC 851, (1978) 
1 SCC 405, S.L. Kapoor v Jagmohan AIR 1981 SC 136, 
(1980) 4 SCC 379, Union of India v Tulsiram Patel AIR 1985 
SC 1416, (1985) 3 SCC 398).  
45. 
 
The concept of audi alterum partem cannot be invoked in 
view of the peculiar circumstances of the case as it would be an aid to 
and violation of the Constitution, which can never be the object of 
natural justice. 
 
We have already held in the judgment impugned that: 
“iii) 
since Mr. Justice Abdul Hameed Dogar was never a 
constitutional Chief Justice of Pakistan, therefore, all 
appointments of Judges of the Supreme Court of Pakistan, 
of the Chief Justices of the High Courts and of the Judges of 
the High Courts made, in consultation with him, during the 
period that he, un-constitutionally, held the said office from 
3.11.2007 to 22.3.2009 (both days inclusive) are hereby 
declared to be un-constitutional, void ab initio and of no 
legal effect and such appointees shall cease to hold office 
forthwith; 
 
Provided that the Judges so un-constitutionally 
appointed to the Supreme Court while holding the offices as 
Judges of any of the High Courts shall revert back as 
Judges of the respective High Courts subject to their age of 
superannuation and like-wise, the Judges of the High 
Courts, who were District and Sessions Judges before their 
said un-constitutional elevation to the High Courts shall 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
54 
revert back as District and Sessions Judge subject to 
limitation of superannuation; 
 
(iv) 
the Judges of the Supreme Court of Pakistan, if any, 
the Chief Justices of the High Court, if any and the Judges 
of any of the High Courts, if any, who stood appointed to the 
said offices prior to 3.11.2007 but who made oath or took 
oath of their respective offices in disobedience to the order 
passed by a Seven Member Bench of the Supreme Court of 
Pakistan on 3.11.2007 in C.M.A.No.2869 of 2007 in 
Constitution Petition No.73 of 2007, shall be proceeded 
against under Article 209 of the Constitution. The Secretary 
of the Law Division of the Government of Pakistan shall take 
steps in the matter accordingly.  
Provided that nothing hereinabove shall affect those 
Judges who though had been appointed as Judges/Chief 
Justices of any of the High Courts between 3.11.2007 to 
22.3.2009 but had subsequently been appointed afresh to 
other offices in consultation with or with the approval of or 
with the consent of the Constitutional Chief Justice of 
Pakistan.” 
 
46. 
 
As mentioned above all appointments made in the superior 
judiciary have been declared to be unconstitutional, void ab initio and of 
no legal effect and such appointees shall cease to hold office forthwith. 
In such view of the matter as rightly pointed out by Mr. Rashid A. Rizvi, 
learned Sr. ASC that any super structure subsequently built on the 
basis of such void orders passed under the garb of PCO did not possess 
any legal sanctity and besides that it is well settled by now that 
Constitutional jurisdiction cannot be invoked in aid of injustice. It is 
noteworthy that the courts have refused to intervene and the judicial 
consensus is that “where the grant of relief would amount to retention of 
ill-gotten gains or would lead to injustice or aiding the injustice,” as such 
the question of the applicability of natural justice does not arise and in 
support thereof various cases can be cited which are as under:- 
Government of N.W.F.P. v. Muzaffar Iqbal and others 1990 
SCMR 1321, Hussain Bakhsh and others v. Settlement 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
55 
Commissioner and others PLD 1969 Lah. 1039, Pakistan 
Gum and Chemicals Ltd. v. Chairman, Karachi Municipal 
Corporation PLD 1975 Kar. 495, Yousaf Ali v. Muhammad 
Aslam Zia PLD 1958 SC 104, Khuda Bakhsh v. Khushi 
Muhammad PLD 1976 SC 208, Conforce Ltd. S. Ali Shah 
PLD 1977 SC 599, Mazhar Hussain Khan v. Government of 
West Pakistan 1983 SCMR 40, Muhammad Swaleh’s case 
PLD 1964 SC 97, Yousaf Ali Mullah Noor Bhoy v. The King 
PLD 1949 PC 108, Muhammad Fazil v. Chief Settlement 
Commissioner PLD 1975 SC 331, Sharif Ahmad Hashmi v. 
Chairman, Screening Committee 1978 SCMR 367, Raunaq 
Ali v. Chief Settlement Commissioner PLD 1973 SC 236, 
Chittagong Chamber of Commerce and Industry v. C.S. Ltd 
PLD 1970 SC 132, PLD 1973 SC 236, Begum Shamsun 
Nisa v. Said Akbar Abbasi and another PLD 1982 SC 413, 
Gul Muhammad v. Additional Settlement Commissioner 
1985 SCMR 491, Nazim Ali and others v. Mustafa Ali and 
others 1981 SCMR 231, Wali Muhammad and others v. 
Sheikh Muhammad and others PLD 1974 SC 106, Meraj 
Din v. Director, Health Services 1969 SCMR 4, Tufail 
Muhammad v. Muhammad Ziaullah Khan PLD 1965 SC 
269, Azmat Ali v. Chief Settlement and Rehabilitation 
Commissioner PLD 1964 SC 260, Province of the Punjab v. 
S. Muhammad Zafar Bukhari PLD 1997 SC 351, Nawab 
Syed Raunaq Ali and others v.  Chief Settlement 
Commissioner and others PLD 1973 SC 230, Reg v. 
Eastbourne Corporation (1900) 83 LTR 338, The Queen v.  
The Eastern Counties Railway (1843) 12 LJR 271, The 
Queen v. Lord Newborough (1869) LR 4 QB 585) Khiali 
Khan v. Nazir PLD 1997 SC 304, Raunaq Ali v. Chief 
Settlement Commissioner (PLD 1973 SC 236), Muhammad 
Baran v. Member (Settlement and Rehabilitation), Board of 
Revenue PLD 1991 SC 691, Engineer-in-Chief Branch v. 
Jalauddin PLD 1992 SC 207, Manager, Jammu and 
Kashmir State Property in Pakistan v. Khuda Yar PLD 1975 
SC 678, Allah Ditta v. Barkat Ali 1992 SCMR 1974, Vulcan 
Company (Pvt.) Ltd. v. Collector of Customs PLD 2000 SC 
825, Nawab Syed Raunaq Ali and others v. Chief Settlement 
Commissioner and others PLD 1973 SC 236, The Chief 
Settlement Commissioner, Lahore  v. Raja Muhammad Fazil 
Khan and others 1975 SC 331 at 350, Syed Nazim Ali  and 
others v. Syed Mustafa Ali and others 1981 SCMR 231, Wali 
Muhammad and others v. Sakhi Muhammad and others 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
56 
PLD 1974 SC 106, Tufail Muhammad and others v. Raja 
Muhammad Ziaullah and others PLD 1965 SC 269, Khaili 
Khan v Haji Nazir and others PLD 1997 SC 304, Abdul Haq 
Indhar and others v. Province of Sindh and others 2000 
SCMR 907, Farzand Ali v. Province of West Pakistan PLD 
1970 SC 98, Muhammad Shoaib v. Govt. of NWFP 2005 
SCMR 85. 
47. 
 
It is well settled by now that “the object of the 
establishment and the continued existence of the Courts of law is to 
dispense and foster justice, and to right the wrongs. This purpose can 
never be completely achieved unless the injustice done was undone and 
unless the Courts stepped in and refused to perpetuate what was 
patently unjust, unfair and unlawful. It is for this reason that the 
Courts have never permitted their judicial powers to be invoked or used 
for retention of illegal and ill-gotten gains. Nor have the Courts ever 
opted to exercise their powers in aid of injustice or to grant any relief to 
persons with unclean hands or for protecting the unethical or 
underserved benefits”. We cannot render any help to the applicants who 
were 
admittedly 
the 
consequent 
beneficiaries 
of 
the 
said 
unconstitutional, illegal and unethical actions. “There is no gain 
reiterating that superior Courts are not expected to act in aid of injustice 
and to perpetuate the illegalities or put a premium on ill-gotten gains.”  
48. 
 
We are afraid that the Objectives Resolution relied upon by 
Mr. Wasim Sajjad, learned Sr. ASC may not render any assistance to 
the case of applicants for the simple reason that no interpretation of 
any Article of the Constitution repugnant to the Islamic provisions has 
been made in the judgment impugned. The Objectives Resolution 
remained a subject of discussion in various judgments and the judicial 
consensus seems to be that “while interpreting the Constitution, the 
Objectives Resolution must be present to the mind of the Judge and 
where the language of the Constitutional provision permits exercise of 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
57 
choice, the Court must choose that interpretation which is guided by the 
principles embodied therein. But that does not mean, that Objectives 
Resolution is to be given a status higher than that of other provisions and 
used to defeat such provisions. One provision of the Constitution cannot 
be struck down on the basis of another provision. The Objectives 
Resolution made substantive part of the Constitution provides a new 
approach to the constitutional interpretation since the principles and 
provisions of the Objectives Resolution have been placed in the body of 
the Constitution and have now to be read alongwith the other provisions 
of the Constitution. While interpreting the provisions of the Constitution 
and the law the Supreme Court observed that the provisions contained in 
Article 2-A read with Objectives Resolution have also been kept in mind in 
the sense that any doubt, major or minor, has been resolved in such a 
manner so as to advance the dictates of justice as well as the rule that 
justice not only should be done but it should seem to have been done. The 
last mentioned principle is enshrined as much in the Islamic 
jurisprudence as in any other juridical system. It may also be clarified 
that had a need arisen to further rely on Article 2-A of the Constitution so 
as to give effect to the Objectives Resolution treating the right to obtain 
justice as a very important substa ntive part of our entire Constitutional 
set up as well as the Constitution itself, the court would have done 
it.”Ghulam Mustafa Khar v. Pakistan) (PLD 1988 Lah. 49), Khar v. 
Pakistan (NLR 1988 Civ. 35), Malik Ghulam Mustafa Khar v. Pakistan 
etc (KLR 88 Cr. C 128), Farhat Jaleel (Miss) v. Province of Sindh (PLD 
1990 Kar. 342), Mrs. Resham Bibi v. Elahi Sain (PLD 1991 SC 1034), 
Mirza Qamar Raza v. Tahira Begum (PLD 1988 Kar. 169), Bank of 
Oman Ltd. v. East Trading Co. (PLD 1987 Kar. 404). 
49. 
 
The judgment impugned is neither in violation of the 
Objectives Resolution as enumerated in Article 2-A of the Constitution 
nor is repugnant to any principle of Qur’an and Sunnah. We are afraid 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
58 
the Objectives Resolution would not render any help to the case of the 
applicants because the main purpose of insertion of Article 2-A in the 
Constitution was the enforcement of Qur’an and Sunnah within the 
framework of the principles and provisions of the Objectives Resolution 
through Courts of law. (Shaukat Hussain v. Rubina PLD 1989 Kar 513, 
Qamar Raza v. Tahira Begum PLD 1988 Kar 169, Habib Bank Ltd v. 
Muhammad Hussain PLD 1987 Kar. 612, Muhammad Sharif v. MBR 
Punjab PLD 1987 Lah. 58). 
50. 
 
It is worth mentioning that in the judgment impugned it 
has been declared that PCO was not a valid piece of legislation, 
therefore, the entire structure raised on it was bound to fall alongwith 
it. In such view of the matter no person can prefer review with the plea 
that he was deprived of the benefit which had accrued to him by the 
said illegal construction. It is also to be kept in view that electronic and 
print media had widely published the proceedings and judgment 
impugned and all the applicants were aware that they were deriving 
their legitimacy under the garb of judgment delivered in Tika 
Muhammad Iqbal Khan’s case (supra) and thus it was incumbent upon 
them to have approached this Court for impleadment. They had no 
other legitimacy and no legal right to hold the office of Judges of 
superior courts once the dictum as laid down in Tika Muhammad Iqbal 
Khan’s case (supra) has been set aside and would be too late in the day 
to take the plea that they were unaware and should be afforded proper 
opportunity of hearing.   
51. 
 
By no stretch of imagination it can be believed that order 
dated 3.11.2007 was not within their knowledge. It was held at page 
183 of the judgment impugned that the entire world ‘knew’ about the 
order dated 3.11.2007 which was appreciated not only in the country 
but at global level hence the plea of ignorance is not tenable. In the 
same wake of events it has been observed that notice was issued both 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
59 
in general as well as in specific terms as is indicative from paragraphs 
No. 145 and 261 of the judgment impugned wherein it was made 
abundantly clear that any one interested in the proceedings was at 
liberty to join the same and thus all the aggrieved and affected persons 
could have approached the Court which was not done by the 
petitioners. As mentioned herein above, the above notice was specific 
for General (Retd.) Pervez Musharraf and it was general for anyone 
interested in the proceedings which negates the version of petitioners 
that no notice was given to them. The question as to the issuance of 
notice was mandatory which was only issued to General (Retd.) Pervez 
Musharraf has been examined and we are of the view that such a 
contention is devoid of merit because General (Retd.) Pervez Musharraf 
was a person responsible for violating the Constitution by means of 
action taken on 3.11.2007 and therefore proper opportunity of hearing 
was afforded to him to put forward his defence. The petitioners do not 
assail the judgment in respect of the treatment it gives to those actions. 
They, therefore, are not on the same footing as General (Retd.) Pervez 
Musharraf but their grievances are altogether different in nature. It may 
be correct upto the extent that no notice was served individually and by 
name which was not felt necessary in view of the peculiar 
circumstances of the case and for the reasons discussed earlier. It is 
also not believable that the order dated 3.11.2007 was not within their 
knowledge which was widely published in print and electronic media 
and the petitioners being members of higher judiciary cannot remain 
ignorant as their entire fate was revolving around the PCO and the Oath 
Order hence the question of lack of knowledge does not arise. We fully 
subscribe to the view of Mr. Hamid Khan, learned Sr. ASC that the 
houses of people were being raided, many arrest has been taken place, 
some had gone to hiding, whole of the country was at turmoil and it was 
not an isolated matter but it affected the entire country which was 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
60 
completely paralyzed. In such a situation how the petitioners could 
remain ignorant qua the order passed on 3.11.2007. The presumption 
of knowledge of the order can be validly drawn. 
52. 
 
After having discussed the relevant provisions of law qua 
review and various judicial pronouncements, we are of the view that no 
yardstick can be fixed that by whom review can be filed and therefore, 
no restriction can be made on an ordinary litigant for the redressal of 
his genuine grievances subject to circumstances of the case. After 
having a careful perusal of all the review petitions it can be inferred 
safely that no grievance whatsoever was expressed against the 
judgment impugned whereby all the actions of General (Retd.) Pervez 
Musharraf taken w.e.f. 3.11.2007 to 15.12.2007 were declared unlawful 
and unconstitutional. It is worth mentioning that the petitioners were 
also not defending the dictum laid down in Tika Muhammad Iqbal 
Khan’s case (supra) rather they were aggrieved of the fall out of the 
judgment impugned declaring their appointments as invalid. It is, 
however, to be noted that this principle was never evolved at first 
occasion and rather the law laid down in the cases of Al-Jehad Trust 
and Asad Ali (supra) was followed and re-affirmed. In our view it was not 
the first occasion as mentioned herein above that the validity or 
otherwise of the appointment of a person as a Judge of the superior 
Court was examined. How a declaration can be given that the 
appointment of the petitioners were not unconstitutional and illegal as 
it would be in contravention of the law laid down in Al-Jehad Trust and 
Ghulam Hyder Lakho’s case (supra). The impugned judgment had only 
re-affirmed the well entrenched legal proposition finally decided in the 
above referred two cases. 
53. 
 
We may clarify once again that the powers as conferred 
upon this Court under Article 188 of the Constitution, Rule XXVI of the 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
61 
Supreme Court Rules, 1980 and Order XLVII CPC can be invoked in 
suitable cases as this Court had a prerogative and privilege to do so if 
found in the interest of justice, fair play and equity. An ordinary litigant 
must not be prejudiced by the observation made herein above in a 
peculiar backdrop and scenario already discussed at length in 
preceding paragraphs. 
54. 
 
Mr. Wasim Sajjad and other counsel representing the 
petitioners have not been able to satisfy us as to the implication of a 
judgment in rem which binds parties and non-parties alike as opposed 
to a judgment in personam  which only affects the parties to a lis. The 
cases of Pir Bakhsh Vs. Chairman Allotment Committee (PLD 1987 SC 
145) and Hameed Akhtar Niazi Vs. Secretary, Establishment Division 
(1996 SCMR 1185) have established the distinction between judgments 
in rem which apply to all regardless of whether they were parties or not 
and a judgment in  personam which does not bind non-parties. It would 
be appropriate to mention here at this stage that the judgment of 
31.7.2009 sought to be reviewed was a judgment in rem enunciating a 
legal principle. It, therefore, had the status of conclusiveness and 
finality and no person can be allowed to challenge it merely for the 
reason that he was not a party in the case and had not been heard. 
55. 
 
   In fact the judgment impugned has been considered in 
the country as well as on global level as a triumph of democratic 
principles and a stinging negation of the dictatorship. It is the  
first instance of the Supreme Court stating in a categoric, loud  
and abundantly clear manner that military interventions are illegal  
and will hardly find any colluder in future within the judiciary.  
The impugned judgment provides much needed redress as it will  
render considerable help in blocking the way of adventurers and 
dictators to creep in easily by taking supra Constitutional steps 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
62 
endorsed, supported and upheld under the garb of the principle of 
necessity in the past which will never happen again. Had our superior 
judiciary followed the path of non-PCO Judges, the course of Pakistan’s 
political and judicial history would have been different. The verdict has 
been appreciated by all segments of society for being issue oriented 
rather than individual specific and therefore, no individual including 
the petitioners should be aggrieved. The judgment impugned would 
encourage future justices to take the firm stand against usurpers. The 
judgment impugned being in the supreme national interest hardly 
needs any justification for review. The review applications being not 
maintainable are accordingly dismissed. These are the reasons for our 
short-order dated 13.10.2009.    
 
 
 
        Chief Justice 
                   
 
 
 
Judge  
 
 
       Judge   
         
 
 
 
Judge  
 
 
       Judge   
 
        Judge  
 
 
 
 
Judge  
 
 
       Judge   
 
        Judge  
 
 
 
 
Judge  
 
 
       Judge   
 
        Judge  
 
 
 
Judge  
 
 
       Judge   
 
         
 
 
 
 
Islamabad the  
13th October, 2009 
Iqbal Naseer 
 
NOT APPROVED FOR REPORTING  
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
63 
56. 
 
Sardar Muhammad Raza, J.– The background, the 
circumstances and detailed introduction has already been 
furnished by my Honourable brother Mr. Justice Javed Iqbal. 
Suffice it to say that the learned Judges of High Courts, affected 
by our judgment dated 31.7.2009 in Constitutional Petitions No.8 
and 9 of 2009, through applications in hand, seek permission to 
get the judgment reviewed, on the ground, inter alia, that they had 
been condemned unheard. Majority held, through short order 
dated 13.10.2009, that the Reviews are not maintainable. With my 
humble comprehension of law and justice, I happened to dissent 
with the majority view. 
57. 
Mr. Wasim Sajjad, learned Senior ASC was the first to 
initiate. His elaborate arguments were followed by rest of learned 
counsel, 
among 
whom, 
Shaikh 
Zameer 
Hussain, 
Malik 
Muhammad Qayyum, Mr. Khalid Ranjha, Syed Ali Zafar, Syed 
Naeem Bokhari and Dr. A. Basit, added their finishing notes. The 
caveat contentions were supported by Mr. Rashid A. Razvi, Mr. 
Hamid Khan, Mr. Muhammad Akram Sheikh; Mr. Shah Khawar, 
being the Acting Attorney General. 
58. 
The learned counsel on either side seem to have agreed 
on one thing that the review jurisdiction is exercised by the 
Supreme Court under (i) Article-188 of the Constitution, (ii) 
Order XXVI of the Supreme Court Rules, 1980, and (iii) Order 
XLVII of the CPC, all taken together. I would like to dilate upon 
Article-188 of the Constitution and Order XXVI of the Supreme 
Court Rules, 1980 and would not rely upon Order XLVII because 
as per Rule-9(ii) substituted by the Federal Adoption of Laws 
Order, 1975 (P.O 4 of 1975), Order XLVII, CPC is not applicable to 
the Supreme Court. 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
64 
59. 
A close perusal of Article-188 of the Constitution and 
Order XXVI of the Supreme Court Rules, 1980 would indicate that 
both these provisions commence with the words “the Supreme 
Court shall have power”. Similar are the words in Order XXVI that 
“the Court may review its judgment or Order”. This makes it 
abundantly clear that the Supreme Court has wide, rather, suo 
moto powers to review its judgments or orders provided the 
grounds for such review are available. Order XLVII, CPC, 
according to the Supreme Court Rules, are referable only to the 
extent of the grounds, not the ones mentioned in the Order but 
similar to those mentioned therein. The Rules, therefore, provide a 
much wider ambit for review than that mentioned in Order XLVII. 
Once again I may mention that except for the similarity of 
grounds, nothing can be borrowed from Order XLVII, CPC so as to 
restrict the jurisdiction of the Supreme Court for the simple 
reason that nothing mentioned in Order XLVII CPC is applicable to 
the Supreme Court. 
60. 
The above conclusion leads to further analogy that even 
filing of application by a person is not necessary. If, at all, an 
application is filed by any person feeling aggrieved, it may be 
considered as an information furnished for the Supreme Court to 
exercise its powers under Article-188 of the Constitution. I have 
purposely mentioned Article 188 of the Constitution and avoided 
the Supreme Court Rules because any jurisdiction, original or 
appellate, exercised by the Supreme Court under the provisions of 
the Constitution (Article-184(3) – 188) cannot be limited, abridged, 
curtailed or restricted even by the Supreme Court itself, under its 
rule making power.  I fully agree on this point with Sheikh Zamir 
Hussain, learned counsel for one of the applicants that in order to 
do complete justice under Article-4, 25, 187 and 188, the 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
65 
Supreme Court should rather assume jurisdiction instead of 
refusing to do justice. Malik Asad Ali’s case (PLD 1998 SC 161). 
61. 
It was contended that the applicants have no locus 
standi to get the judgment in question reviewed. This argument 
makes room for discussion as to whether the applicants (the 
judges of superior judiciary) are the aggrieved persons, in view 
further of a phenomenon, as to whether the judgment in question 
was in rem  or in personam. In order to determine as to who is the 
person aggrieved, I would be referring to the case law produced by 
the learned counsel on either side. Before that, I may emphatically 
express my belief that no previous authority is required on any of 
the points involved. If this Bench of 14 Honourable Judges of the 
Supreme Court consider a view to be based on natural justice, fair 
play and good conscience, it can render a favourable verdict which 
by itself would be the strongest of rulings to be followed by all 
concerned as a source of relief for teeming millions. I would, thus, 
refer to the authorities only to satisfy those, who believe in letters. 
62. 
Far back in the year 1917, in Jhabba Lal’s case (AIR 
1917 Allahabad 160), Mr. Walsh, J. of Allahabad described the 
person aggrieved as “not the one who is disappointed of a benefit, 
which he might have received if some other order had been made. 
He must be a man, who has suffered a legal grievance, a man 
against whom the decision has been pronounced, which has 
wrongfully deprived him of something or wrongfully refused him 
something or wrongfully affected his title to some something”.  In 
the instant case, the applicants claimed, and rightly so, that 
through the judgment in question, they have wrongfully been 
deprived of the status and their right and title to such status has 
wrongfully been affected. 
63. 
It was also argued that the applicants are not the 
persons aggrieved, because they were not a party to the case in 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
66 
which the judgment is pronounced. In Kawdu’s case (AIR 1929 
Nagpur 185(d), a Director of the company was considered an 
aggrieved person, though he was not a party to the original case. I 
have already observed that under Article-188 of the Constitution, 
the Supreme Court has wide powers to review its judgment, in 
order to prevent miscarriage of justice, without having regard to 
any intriguing technicalities. Similar view seems to have been 
taken by a five member larger Bench of the Indian Supreme Court 
in Shiv Deo Singh’s case (AIR 1963 SC 1909), where nothing in 
Article-226 of the Indian Constitution was considered precluding a 
High Court from exercising the powers of review, which inheres in 
every Court of plennary jurisdiction to prevent miscarriage of 
justice or to correct grave and palpable errors committed by it. In 
this case review of a person, not a party to the proceedings, was 
allowed with remarks that “Khosla, J. (of the High Court) did what 
the principles of natural justice required him to do”. Khosla, J. 
had reviewed his own order on the application of a person, who 
was not a party to the earlier one. 
64. 
Coming to the case law of our own country, the learned 
counsel placed reliance on H.M Saya & Company’s case (PLD 
1969 SC 65), where it is observed that even a stranger to suit can 
file an appeal. To my mind, this verdict is extremely important 
because, if  a stranger can file an appeal, he can file a review as 
well on the same analogy. In the instant case, the entertainment of 
review is all the more important, because the judgment in 
question is that of the Supreme Court against which not appeal is 
provided. Obviously, an aggrieved person can file nothing, but a 
review on a very strong ground that he was not a party and was 
not heard. The restriction prevailing in the mind of the learned 
opposite counsel might not have been damaging, had the order 
under review been passed either by the Civil Court or by the 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
67 
District Court or the High Court because any aggrieved person 
could have filed an appeal. If such principle is applied to the 
judgment of the Supreme Court, it would tantamount to 
absolutely barring the remedy to persons who have certainly been 
condemned unheard. Fahmida Khatoon’s case (PLD 1975 Lahore 
942) is though a single Bench judgment of Lahore High Court yet 
numerous rulings have been mentioned and discussed therein; 
holding that even a stranger, without being a party, can file a 
review, even under Order XLVII, Rule-1, CPC. 
65. 
To be treated in accordance with the law, and to be heard 
by any forum, likely to decide some matter against him, is the 
fundamental and inalienable right of a citizen. Any violation 
thereof would be a violation of Article-4 & 25 of the Constitution. 
In this behalf, I would like to refer, with credit, to a judgment 
rendered by a seven member Bench of this Court in case of 
Pakistan Muslim League (PLD 2007 SC 642) which, with pleasant 
coincidence, happened to be authored by my honourable brother, 
Javed Iqbal, J., who also is the author of majority judgment in the 
instant case. In this case, with reference to Article 184 (3) of the 
Constitution, it was under consideration as to whether it was 
necessary that the person invoking relevant jurisdiction should be 
an aggrieved party. This Court held that it is not necessary for the 
purpose involved in the said case. Presently, the case of the 
applicants is on a better footing because they are most certainly 
the aggrieved party. 
66. 
After having discussed the law produced in the case of 
Pakistan Muslim League, supra, the Honourable author Judge 
observes in view of judicial consensus that; 
“(i) 
that while interpreting Article 184(3) of the Constitution the 
interpretative approach should not be ceremonious observance of 
the rules or usages of the interpretation but regard should be had 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
68 
to the object and purpose for which this Article is enacted i.e. the 
interpretative approach must receive inspiration from the triad of 
provisions which saturate and invigorate the entire Constitution 
namely the Objectives Resolution (Article 2-A), the fundamental 
rights and the directive principles of State policy so as to achieve 
democracy, tolerance, equity and social justice according to Islam. 
(ii) 
That the exercise of powers of Supreme Court under Article 184(3) 
is not dependent only at the instance of the “aggrieved party” in 
the context of adversary proceedings. Traditional rule of locus 
standi can be dispensed with and procedure available in public 
interest litigation can be made use of, if it is brought to the Court 
by a person acting bona fide. 
(iii) 
…………………………………………… 
(iv) 
That under Article 184(3) there is no requirement that only an 
aggrieved party can press into service this provision. Supreme 
Court can entertain a petition under Article 184(3) at the behest of 
any person. 
(v-vii) 
……………………………………………….. 
(viii) 
That the language of Article 184(3) does not admit of the 
interpretation that provisions of Article 199 stood incorporated in 
Article 184(3) of the Constitution. Therefore, this Court while 
dealing with a case under Article 184(3) of the Constitution is 
neither bound by the procedural trappings of Article 199 ibid, nor 
by the limitations mentioned in that Article for exercise of power 
by High Court in a case.” (Emphasis provided). 
  
Though the discussion aforementioned refers to Article 184(3) yet 
the principles of prudence, interpretation and assumption of 
jurisdiction, in order to do complete justice, are fully in 
consonance with what I feel in the instant case with reference to 
Article 187-188 of the Constitution. 
67. 
Faqirullah’s case (1999 SCMR 2203) is another example 
of doing justice by invoking review jurisdiction. In this case, 
despite State being the protector of the rights of complainant in 
criminal cases, was present yet on the review application of 
complainant, who was not a party in the original case, he was 
heard and, no less a judgment of acquittal was set aside and the 
accused sentenced to death. This Court maintains the practice of 
imparting ultimate justice throughout. It should not be departed 
from in the instant cases. 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
69 
68. 
I am of the firm view that, for the Supreme Court to 
exercise its powers under Article 188 of the Constitution and 
Order XXVI of the Supreme Court Rules, it is not at all necessary 
for the applicant/petitioner to be a party in the judgment under 
review. Such inferences are drawn, if at all, from Order XLVII of 
the CPC, which is not applicable to the Supreme Court. Rather, in 
cases where complete justice was needed to be done, even 
strangers were entertained in review matters under Order XLVII, 
CPC. 
69. 
The instant applications are further contested on the 
ground that our judgment sought to be reviewed was judgment in 
rem and conclusive against world and thus could not be 
challenged by the individuals. Mr. Rashid A. Razvi placed reliance 
on Pir Bukhsh’s case (PLD 1987 SC 145). After having gone 
through the above ruling and also having reconsidered our own 
judgment in question, I believe that the judgment in totality is not 
in rem. So far as our declaration with regard to the Proclamation 
of Emergency, the Enforcement of Provisional Constitution Order 
and Oath of Office (Judges) Order, 2007 is concerned, it can be 
dubbed as judgment in rem, but so far as the fall out thereof with 
regard to the applicants is concerned, it is in personam, especially 
because such judges were not a party and could have been 
impleaded in view of the prospective results of our principal 
findings. The amends can be made only by hearing them now at 
this stage.  
70. 
Quite forcefully, it was alleged that this Court in Al-Jehad 
Trust’s case (PLD 1996 SC 324) had not impleaded many judges 
despite the fact that they were eventually affected. No doubt Al-
Jehad Trust’s case, Supra, has been extensively relied upon in our 
judgment in question, but this aspect of Al-Jehad Trust’s case, 
where also the Judges were condemned unheard, is not at all 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
70 
enviable. It was admitted at the Bar that judges of some High 
Courts were even issued notice in Al-Jehad Trust’s case, but it is 
equally undeniable that many affected were not made party. 
Should we, in the circumstances, feel bound by an action, where 
the judgment operated in rem for those who were not impleaded 
and in personam for those who stood impleaded. This course of 
action adopted in that case was also not judicial and should not 
be followed as a precedent, especially by a Bench of as many as 14 
Judges. To my mind, even in Al-Jehad Trust’s case, the Court was 
not sure, whether it is going to pronounce a judgment in rem or in 
personam. To some, it impleaded, to others, it did not, thereby, 
condemning them unheard. If such a precedent is followed once 
again, as was followed in our judgment in question, and is placed 
reliance upon even to deny hearing in the review petitions, it 
would not be a judgment in rem, but a “condemnation-in-rem”. 
71. 
It was further argued in the light of the case of Hameed 
Akhtar Niazi (1996 SCMR 1185) considering the judgment to be 
one in rem, that the benefit thereof was extended to those people 
as well, who were not a party. I think this judgment, rather, serves 
my view point. In the judgment aforesaid, benefit of one verdict 
was given to all universally and not that the people were 
condemned universally. The ruling aforesaid was beneficiary and 
not jeopardizing and hence, cannot be pressed into service. 
Assuming for the sake of arguments that our judgment in 
question was a judgment in rem, which I do not believe it was, 
how on earth it was inferred that such judgment cannot be 
challenged by a person or persons who were not a party to it, but 
seriously and adversely affected thereby. There is every likelihood 
that if heard in review, the applicants might be able to influence 
the Court to change its decision concerning the applicants. It all 
depends upon the hearing of the case and, for the sake of doing 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
71 
ultimate justice, I hold the view that the review petitions be heard 
on merit. 
72. 
A judgment cannot be called one in rem when questions 
of fact being a deciding factor and being variously relevant and 
applicable to the affectees involved, has differently and specifically 
been pleaded in defence. 
73. 
Now I come to the most important aspect of the case 
concerning the principle of audi alteram partem. The applicants 
claimed that they have been condemned un-heard. That they have 
not been a party to the constitutional petitions No.8 & 9/2009; 
that they were not even issued notice to appear and answer the 
charges before taking the drastic action against them and that the 
review petitions filed by them are the first and last chance that 
they are likely to avail. If not given a chance to be heard, the 
principle of audi alteram partem would stand violated, not once 
but thrice. 
74. 
The centuries old concept of audi alteram partem is 
nothing but a principle of due process embodied clearly and 
expressly in Article 4 of our constitution. The principle which now 
has become of universal acceptance is a wide ranging guarantee of 
procedural fairness in the judicial process. Giving the defendant 
his day in the Court is of the essence of principle of justice as also 
of natural justice. Guarantee of due process refers to procedure 
that protects the people against arbitrary treatment. Essential 
elements of due process in “Methew Vs. Albridge” were laid down 
as follows:- 
i)  
Adequate notice of charges or basis for action;  
ii)  
A neutral decision maker; 
iii) 
An opportunity to make an oral presentation to the 
decision maker 
iv)  
An opportunity to present evidence; 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
72 
v) 
An opportunity to controvert and cross-examine the 
evidence; 
vi)  
The right to have a counsel; 
75. 
In his book “Judicial Review of Public Action”   Mr. 
Justice Fazal Karim has elaborately discussed the principle of due 
process associating the same with human rights. He further goes 
on to refer to Section 24-A of the General Clauses Act and 
concludes that the concept of “fairness” has received legislative 
recognition and confirmation through its insertion in the General 
Clauses Act. According to the learned author, Section 24-A of the 
Act embodies, by necessary implication, the principles of natural 
justice, which include the right of hearing before an impartial 
Tribunal. In the case of Fisher Vs. Keen (1878) 11 Ch.D.353, it 
was observed that persons who decided upon the conduct of 
others, they are not “to blast a man’s reputation forever, to ruin 
his prospects for life, without giving him an opportunity of either 
defending or palliating his conduct”. The jurists have gone to such 
an extent of holding that the defect created by an absence of 
hearing cannot be cured by a second and subsequent hearing 
because the original decision is a nullity. 
76. 
The concept of audi alteram partem based on the 
principle of natural justice is Centuries old. Audi alteram partem 
applies to “Everyone who decides Anything”. The history quite 
laboriously is traced by a five member larger bench of Supreme 
Court of India in Tulsi Ram’s case (AIR 1985 SC 1416). The 
expression ‘natural law’, was largely used in the philosophical 
speculation of the Roman Jurists and was intended to denote a 
system of rules and principles for the guidance of human conduct 
which, independently of enacted law or of the systems peculiar to 
any one people, might be discovered by rational intelligence of 
man and would be found to grow out of and conform to his 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
73 
nature, meaning by that word his whole mental, moral and 
physical constitution. This principle was opposed by those who 
believed natural justice, with reference to its terminology, as the 
law of jungle that prevailed widely on earth. From the clash of 
those theories, if there was any help to be found or any hope to be 
discovered, it was only in a law based on justice and reason which 
transcended the laws and customs of men, a law made by 
someone greater or mightier than those men who made these laws 
and established these customs. Such a person could only be a 
divine being and such a law could only be “natural law” or “the 
law of nature”, so just that it could be binding on all mankind. It 
was not the law of nature in the sense of the law of jungle. With 
the passage of time, the natural justice happened to be considered 
as part of the law of God. 
77. 
Natural justice fulfills the requirements of substantial 
justice and the natural sense of what is right and wrong. Many 
writers have dubbed it as “fundamental justice”, “fair play in 
action” and a “duty to act fairly”. Ormond, LJ in Lewis Vs. Heffer 
(1978) I WLR 1061.1076 have found the phrase of natural justice 
to be “a highly attractive and potent phrase”.  
78. 
Maugham, J., in Maclean Vs. Workers Union (1929) 1 
Ch. 602, 624) held a different view and considered natural justice 
to be a law of jungle and of might is right. He summed up with the 
observation that, “the truth is that justice is a very elaborate 
conception, the growth of many centuries of civilization; and even 
now the conception differs widely in countries usually described 
as civilized”. Some jurists following Maugham L. J., were of the 
opinion that “the principle of natural justice are vague and 
difficult to ascertain”.  This fallacious view was well rebutted by 
Lord Reid in Ridge Vs. Baldwin (1964) AC 40, in the following 
words:- 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
74 
 
“In modern times opinions have sometimes been 
expressed to the effect that natural justice is so vague as to be 
practically meaningless. But I would regard these as tainted 
by the perennial fallacy that because something cannot be cut 
and dried or nicely weighed or measured therefore it does not 
exist. The idea of negligence is equally insusceptible of exact 
definition, but what a reasonable man would regard as fair 
procedure in  particular circumstances and what he would 
regard as negligence in particular circumstances are equally 
capable of serving as tests in law, and natural justice as it has 
been interpreted in the courts is much more definite than that. 
It appears to me that one reason why the authorities on 
natural justice have been found difficult to reconcile is that 
insufficient attention has been paid to the great difference 
between various kinds of cases in which it has been sought to 
apply the principle”. (Emphasis supplied) 
 
79. 
The whole discussion boils down to the conclusion that 
justice should not only be done but should manifestly be seen to 
be done. In Bosweel’s case (1605) 6 Co.Rep.48b, 52a), it was 
beautifully held that;  
 
“He who shall decide anything without the other side 
having been heard, although he may have said what is 
right, will not have done what is right.”  
The principle of natural justice has now received international 
recognition by being enshrined in article 10 of the Universal 
Declaration of Human rights adopted and proclaimed by the 
General Assembly of the United Nations by resolution 217A (III) of 
December 10, 1948. It was further recognized by Article 6 of the 
European Convention for the Protection of Human Rights and 
Fundamental Freedoms, Article 14 of the International Covenant 
on Civil and Political Rights adopted by the General Assembly 
Resolution 2200A (XXI) of December 16, 1966, having come into 
force on March 23rd, 1976. 
80. 
The outcome of the short history of audi alteram partem 
narrated hereinbefore, as applicable to the present judicial  
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
75 
systems of the whole world, is put in a nutshell by the Supreme 
Court of India in the case of Tulsi Ram Supra, as follows:- 
“……audi alteram partem rule, in its fullest amplitude means 
that a person against whom an order to his prejudice may be 
passed should be informed of the allegations and charges 
against him, be given an opportunity of submitting his 
explanation thereto, have the right to know the evidence, both 
oral or documentary, by which the matter is proposed to be 
decided against him, and to inspect the documents which are 
relied upon for the purpose of being used against hi m, to have 
the witnesses who are to give evidence against him examined 
in his presence and have the right  to cross-examine them, 
and to lead his own evidence, both oral and documentary, in 
his defence…..” 
81. 
Coming to the learned discourse of my honourable 
brother in the majority view, the reliance was placed on the 
assertions of Mr. Rashid A. Razvi and Mr. Hamid Khan, learned 
counsel for the caveators that the applicants were not a party to 
Constitution Petitions No.8 & 9 of 2009 and hence have no locus 
standi to file a review, not maintainable in turn. This argument, I 
have already mentioned, is derived from Order XLVII of the CPC 
which, as observed earlier, is not applicable. It was further alleged 
that the applicants, not being a party, no relief was claimed 
against them. Such argument makes the review petitions all the 
more necessary to be heard. If the actions challenged in the 
Constitution Petitions were those of General Pervez Musharraf, 
taken in between 3.11.2007 and 16.12.2007, and if this Court 
deemed it necessary to issue notice to General Pervez Musharraf, 
it was rather obligatory to issue notices to the applicants, if any 
possible action was intended to be taken against them as a fallout 
of any declaration. 
82. 
Mr. Hamid Khan’s assertion that the applicants were 
aware of the hearing of Constitution Petitions and that they could 
have applied for becoming a party, was also approved in the 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
76 
majority judgment. I do not subscribe to the view so taken 
because it assumes that the applicants had a knowledge of what 
is happening in this Court and that they ought to have had the 
knowledge as to what was going to happen, concerning them. It is 
a settled principle of law that any knowledge outside the Court 
does not fall within the purview of knowledge. If the argument is 
considered valid, it would mean that in proceedings in rem (as it is 
called by the opposite side), the public at large, even if in 
thousands, should themselves come to the Court and apply for 
impleadment. This is neither advisable nor practicable. The simple 
rule of justice is that, whosoever is likely to be affected, notice 
should be issued to him or them by the Court itself. This was 
precisely done by this Court qua General Pervez Musharraf, but 
the applicants were ignored.  
83. 
Mr. Hamid Khan further contended that in our judgment 
dated 31.7.2009, reliance is placed upon the case of Al-Jehad 
Trust and Malik Asad Ali, supra and if the review petitions are 
heard, the applicants might allege to set the aforesaid rulings 
aside. I have already referred to Al-Jehad Trust’s case and firmly 
believe that this Bench is not bound to follow every act taken in 
that case as gospel. The fact that the Judges from the province of 
Sindh and NWFP were not made party to the above referred case, 
is not at all enviable aspect of Al-Jehad Trust case. This Bench 
consisting of 14 Honourbale Judges could have avoided to follow 
Al-Jehad Trust case, so far as the question of condemnation of 
certain citizens was concerned, especially when such citizens 
happened to be the judges of superior judiciary. 
84. 
It was further accepted in majority judgment that in our 
judgment in question, the void actions of General Pervez 
Musharraf and void declarations in Tikka Iqbal case were set 
aside; that it was a national act, which cannot be set aside in 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
77 
review. This argument is totally misplaced because it might be 
advanced when the review petitions are heard. At the moment, we 
are stuck up in the problem as to whether the review petitions 
should at all be heard or not. Wittingly or unwittingly, the remarks 
have come for the third time, concerning the merit of the review 
petitions and such remarks have condemned the applicants for 
the third time.  
85. 
The argument that the hearing of the review petitions 
would be an exercise in futility, is also not valid because such 
exercises are mostly undertaken by this Court regardless of what 
the outcome of review petition would be. How the results of review 
petitions could be assessed or visualized at the present moment. 
The majority view has decided this aspect as well without the 
applicants being heard in review petitions. At this juncture, Mr. 
Muhammad Akram Sheikh, learned counsel for the caveator was 
last to be heard. He stated that power of Court is not a charity, 
but bound to be used for the benefit of the citizens. I agree with 
the learned counsel that power of Court should always be used for 
the benefit of citizens, and those citizens who were Judges of the 
superior judiciary, if  condemned unheard, must be heard in 
review. Mr. Sheikh, while speaking from the deep recesses of his 
mind and heart, at the end submitted that “he was not in favour of 
closing the door of justice to any one”. So do I.  
86. 
The matters alluded to above and the points yet to be 
heard in the review petitions have already been decided in para 
No.21 of majority judgment, pre-determining that if heard, a 
contrary view cannot be taken. Whether a contrary view can be 
taken or not, is possible to be judged only after when the review 
petitions are heard. Does it require to be reaffirmed that this 
aspect of Al-Jehad Trust’s case, if found violative of the principles 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
78 
of natural justice, could not be set aside or differed from, by a 
Bench of 14 Honourable Judges of this Court? 
87. 
In majority judgment (para-22), it is remarked that the 
applicants, in their review petitions have not challenged the 
declaration of this Court in main judgment that the actions of 
General Pervez Musharraf were void ab initio and hence it be 
presumed that the applicants accepted the fallout thereof. I 
humbly disagree with this view as well because if that part of our 
judgment is not challenged, it does not mean that the fallouts are 
accepted. Had those been accepted by the applicants, there was 
no sense in filing the review petitions. Such remarks in para-22 
are also made with reference to the review petitions, which are 
never heard as yet. In para-22, page-25, the merits of review are 
rejected on the very basis of our own judgment which is under 
review and which reviews we have not yet heard. 
88. 
A review, under the law, can be allowed if sufficient 
grounds are established. Such grounds are dispelled in para 28 
and 29 of the judgment without hearing the petitioners on merits. 
I may recall that no technicalities of Order XLVII, CPC can be 
brought under consideration, the order being not applicable to the 
Supreme Court, except for the grounds mentioned therein. 
Moreover, the grounds also could be adhered to only when review 
petitions are heard. In para 32, with reference to the judgment of 
Honourable Mr. Justice Ghulam Mujaddid Mirza, it was observed 
that the Supreme Court had laid down a law (PLD 1969 SC 65), 
regarding appeals and that there is a lot difference between 
appellate and review jurisdiction. I remember having discussed 
this matter in the earlier part of the judgment and have tried to 
equate appellate jurisdiction with the review jurisdiction, 
especially when the order under review is that of the Supreme 
Court, against which no appeal lies, except to the God Almighty. I 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
79 
have a firm faith and belief that the matter in hand should not be 
left to Almighty Allah because His retribution and requital is, no 
doubt delayed but certainly not outrageous. 
89. 
The applicants through the majority judgment are denied 
hearing of review on the analogy that by doing so, the finality 
attached to the judgment of the apex court would be eliminated. I 
do not agree with this view as well because had it been so, there 
would have been no justification for the legislature to provide 
Article 188 in the Constitution and no occasion for the Supreme 
Court to make a provision of Order XXVI in the Rules. Judgments 
of the Supreme Court are occasionally reviewed. If the factum of 
finality is of prime consideration, the judgment in review can, 
rather, be the one which becomes final. In para 35 of the majority 
judgment, it was after all mentioned that “any other view possible” 
could not be taken even if the review petitions are heard. At the 
cost of repetition, I may say that it is tantamount to rejecting the 
review petitions without hearing them, whereas, the fact of the 
matter is that if a judgment is reviewed, it is always the other view 
which is taken. In para 38, it was observed that a rule making 
authority cannot clothe itself with the power, which is not given to 
it under the statute. I also believe in the same concept of law that 
rule making power cannot step beyond the legislation and on the 
same analogy, this Court under its rule making power, cannot 
curtail its own power, widely given by Article 187 and 188 of the 
Constitution. 
90. 
Repeatedly it was argued that the applicants have not 
been issued notice in main Constitution Petitions No.8 & 9 of 
2009, decided on 31.7.2009, because they happened to possess 
the status of Judges. In this behalf, the majority seems to be of 
the view, approved and taken from Al-Jehad Trust’s case as 
follows:- 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
80 
“It must be borne in mind that Judges of superior 
Courts by their tradition, maintain high degree of comity 
amongst themselves. They are not expected to go public on 
their differences over any issue. They are also not expected 
to litigate in Courts like ordinary litigant in case of denial of 
a right connected with their offices. Article VI of the Code of 
Conduct signed by every Judge of the Superior Courts also 
enjoins upon them to avoid as far as possible any litigation 
on their behalf or on behalf of others. Therefore, in keeping 
with the high tradition of their office and their exalted image 
in the public eye, the Judges of superior Courts can only 
express their disapproval, resentment or reservations’ on an 
issue either in their judgment or order if the opportunity so 
arises…..” (Emphasis provided) 
 
91. 
The above view seems also to be prevailing all over 
when, with reference to the review applications and present 
applications of the Judges, it was seriously objected to as to 
why, being Judges, they had mentioned that through our 
judgment, they happened to loose their service. The use of 
word ‘service’ regarding their assignments and status was 
considered to be below their dignity. With utmost respect and 
with utmost effort at my command, I could not reconcile with 
this paradoxical logic that, on the one hand the Judges are 
considered so honourbale and so exalted that even issuance 
of notice to them in a very crucial matter is considered below 
their dignity and, on the other hand, they are issued 
contempt notices in utter disregard of their status as well as 
the principle of comity among Judges. For a long time, they 
have been hearing the cases of millions of litigant public; they 
have been awarding decrees, recording convictions, imposing 
sentences and redressing the grievances of the people (which 
actions we have safeguarded in our judgment dated 
31.7.2009) and for a long time they have been addressed by 
the learned counsel and the litigant public as “my lord”, but 
at the present, they are issued contempt notices, insulted and 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
81 
humiliated in Court to such an extent that one of the 
advocates among audience, uninvitedly and uninterruptedly 
stands up, pointing out his finger at Mr. Justice Syed Zulfiqar 
Ali Bukhari and proclaiming in the open Court, “isko saza do 
– isko zaroor saza do – isko exemplary punishment do”. This 
act has shocked me so much as if that counsel was pointing 
his finger at us. In view of the dignity attached to their high 
offices and the exalted image that the public have about the 
Judges of superior judiciary, I am of the firm opinion and 
hold that the contempt proceedings against the Judges be not 
initiated and if so, the notices be withdrawn. 
92. 
If heard in review petitions, it is not necessary that they 
be able to persuade this Court to recall its judgment, 
concerning the actions of General Pervez Musharraf, but 
there is likelihood that they might persuade this Court to 
take lenient view against them and to follow the principle of 
condonation by keeping in view the centuries old principle of 
comity among judges. But that too is subject to the hearing of 
the cases. The majority judgment is of the view that even if we 
hear the cases, we would not resort to any second opinion. 
This is tantamount to condemning the applicants for the 
third time and I am afraid, the theory of judgment in rem 
might not turn out to be of condemnation in rem. 
93. 
Getting support from Monika Gandhi’s case (AIR 1978 
SC 597), my honourable brother maintained the view that 
where the right to prior notice and an opportunity to be heard 
before an order is passed, would obstruct the taking of 
prompt action, such a right can be excluded. The relevant 
observation of the Supreme Court of India in the aforesaid 
case is reproduced as follows:- 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
82 
“Since the audi alteram partem rule is intended to 
inject justice into the law, it cannot be applied to defeat 
the ends of justice, or to make the law lifeless, absurd, 
stultifying, self-defeating or plainly contrary to the 
common sense of the situation. ‘Audi alteram partem’ rule 
as such is not cast in a rigid mould and judicial decisions 
establish that it may suffer situational modifications.” 
 
Accordingly, it was observed that the principle of audi alteram 
partem can be applied to achieve the ends of justice and not 
to defeat them. I am spellbound to answer to such 
reasonings. Being a member of the Bench in the original case, 
I personally could not see any urgency involved for which a 
drastic action of ignoring audi alteram partem be resorted to. 
Do we mean to say that, had the applicants/Judges been 
issued notice and had they been heard during the main case 
and even if they are heard in review petitions, it would lead to 
defeat the ends of justice, making the law lifeless, absurd, 
stultifying, 
self-defeating 
or 
plainly 
contrary 
to 
the 
commonsense of the situation. At least, I am not aware of any 
commonsense of the situation that would have lead to 
injustice, had the applicants been heard. If not heard earlier, 
they must be heard now in the review petitions. 
94. 
An undeniable hard fact cannot be forgotten that every 
word reduced into black and white by the Supreme Court is a 
command of law. Consitutionally, such verdict is bound to be 
followed by all the Courts and by generations of the people. 
We should avoid holding a view of such nature that 
tomorrow, even a Civil Judge might stand up and quote the 
Apex Court in order to shun the concept of audi alteram 
partem and resultantly commit injustice. I wish, we had 
followed the quotations of Lord Denning, “Justice isn’t 
something temporal-it is eternal-and the nearest approach to a 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
83 
definition that I can give is, Justice is what the right thinking 
members of the community believe to be fair”. If a just end is 
to be achieved, it must be through just means. 
95. 
Numerous paragraphs of our judgment dated 31.7.2009 
are referred to by my honourable brother in support of the 
view that review petitions have no merit. This also, to my 
mind, is not a fair approach because those very portions of 
our judgment are sought to be reviewed and unless we hear 
the applicants in review, we cannot justify our own views 
under review. Again it was observed that the principle of 
natural justice cannot be applied where “the grant of relief 
would amount to retention of ill-gotten gains or lead to 
injustice or aiding the injustice”. At the cost of repetitions, I 
am constrained to say that this again is a verdict given about 
review 
petitions, 
which 
are 
never 
heard. 
Numerous 
substantial points have already been answered in the 
judgment, which could have only been answered after hearing 
the applicants in review. The applicants are demanding no 
better opportunity than the one given by notice to General 
Pervez Musharraf. Any denial, therefore, to the applicants 
would be a discrimination, violating the provisions of Article 
25 of the Constitution. 
96. 
In paragraph 55, it was remarked that the one sought 
to be reviewed, was a landmark judgment in impeding the 
future path of any dictator. In relation to the aforesaid object 
it was, no doubt, an important judgment in judicial history of 
the country, but another equally important aspect thereof is 
that it practically damaged none except the weakest of the 
strata. The fallouts ought to have been equal. Such 
discrimination can only be made amends for through the 
hearing of review petitions filed by the applicants. 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
84 
97. 
    Consequent upon what has been discussed, I hold 
that the Supreme Court has unfettered powers under Article 
187-188 of the Constitution read with Order XXVI of the 
Supreme Court Rules to do ultimate justice for which review 
petitions are absolutely maintainable. The applications in 
hand are hereby accepted and the review petitions 
entertained for full hearing by the Court. 
 
 
 
 
(Sardar Muhammad Raza) 
Judge 
Islamabad,   
 
 
13th October, 2009. 
APPROVED FOR REPORTING 
Sadaqat 
CH. IJAZ AHMED, J.-   I have had the benefit and privilege of 
going through the judgment recorded by my learned brother Mr. Justice 
Javed Iqbal and generally agree therewith.  In view of the importance of 
the case, I deem it prudent to add few words in support thereto.  The 
petitioners, through instant petitions, have sought review of judgment 
dated 31.7.2009 passed by this Court in Constitution Petition 
No.9/2009 and Constitution Petition No.8/2009 and thereby seek 
opportunity of being heard for modifying or recalling or setting aside 
only the consequential order of the judgment which affects them. The 
judgment has declared the imposition of emergency as illegal and 
unconstitutional and as a consequence thereof its offsprings get 
affected. The petitioners being offsprings concede that emergency was 
unconstitutional but challenged the consequential order on the plea 
that it was passed without granting opportunity of hearing to the 
affectees. The argument in essence is that cutting of roots of 
undesirable tree is valid but thereafter pruning of its branches is 
invalid. 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
85 
2. 
        The doctrine of natural justice is not only to secure justice 
but to prevent miscarriage of justice. It is, therefore, for the courts to 
articulate from case to case what is involved in the concept of natural 
justice in a particular situation. The courts do not like the idea of 
confining the rules of natural justice within any rigid formula. 
3. 
 
The reliefs claimed in Petitions Nos. 9 & 8 are of general 
nature and are against the State and no particular relief is claimed 
against any individual party, therefore, beneficiary of consequential 
order is not entitled to any hearing before striking such order. 
4. 
 
The courts only insist on fair play in action.  Fairness does 
import an obligation to see that no body can take benefits of any acts 
which were passed by the authorities beyond the parameters of the  
Constitution.  A ship and its sailors swim and sink together. Hence, 
when the hazardous ship of emergency is drowned then its sailors 
cannot claim immunity as the fair play demands equal treatment.                      
 
 
 
 
 
                                                                          JUDGE 
 
 
RAHMAT HUSSAIN JAFFERI, J-. I have had the privilege 
of going through the judgment recorded by my learned brother Mr. 
Justice Javed Iqbal and generally agree therewith. However, I like to 
express my opinion with regard to the filing of review application by 
stranger under Order XLVII Rule 1, CPC. The Lahore High Court in the 
case of “Qaim Hussain v. Anjuman Islamia (PLD 1974 Lahore 346)” 
appearing at page 34 of the judgment observed that a stranger, who is 
not a party to the suit cannot file such application. In order to 
appreciate the point, the provisions of Section 114 and Order XLVII of 
CPC are required to be examined. The Section 114, CPC reads as 
under:- 
“Sec.114. - [Review. - (1) Subject as aforesaid, any person 
considering himself aggrieved.— 
(a) by a decree or order from which an appeal is 
allowed by this Code, but from which no appeal has 
been preferred, 
(b) by a decree or order from which no appeal is 
allowed by this Code, or 
(c) by a decision on a reference from a Court of  Small 
Causes,  may apply for a review of judgment to the 
Court which  passed  the decree or made the order, 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
86 
and the Court may make such order thereon as it 
thinks fit.    
 
(2) 
Nothing contained in sub-section (1) shall apply to a 
review of any judgment pronounced or any order made by the 
Supreme Court].”   
 
 
A bare reading of the Section reveals that right to apply for 
review has been given to “any person” but subject to condition that he 
should be aggrieved by a decree or order of the Court. The phrase “any 
person” means a person, no matter who or a person of any kind. Words 
“a person” appearing in Section 12(2), CPC has been defined as a 
person not party to the suit by this Court in the cases of “Muhammad 
Yousaf v. Federal Government (1999 SCMR 1516) and Ghulam 
Muhammad v. M. Ahmad Khan (1993 SCMR 662)”. Thus there is no 
restriction placed under Section 114, CPC to debar any person other 
than the parties to the suit to file review application.  
2. 
 
The rules contained in the First Schedule of Code of Civil 
Procedure are enabling provisions for the advancement of justice, 
therefore, they are required to be consistent with the provisions of the 
enactment. The said rules cannot enlarge or reduce the scope of 
relevant Sections of CPC. In the case of Qaim Hussain (supra) it appears 
that scope of the Section has been reduced which in my humble view is 
not permissible. A detailed and valuable discussion has been made in 
the judgment of my learned brother on the consistency of rules with the 
enactment and observed that statutory rules 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.    
3. 
 
A perusal of Order XLVII which has already been 
reproduced in the judgment would show that in sub-rule 1 the words 
“any person” have been used which are also appearing in Section 114, 
CPC whereas in sub-rule 2 instead of using the words “any person” the 
Framers of rules have used the words “a party”. This departure is a 
significant one which clearly demonstrates that the Lawmakers did not 
intentionally use the words “a party” in sub-rule 1, so as to make it in 
consonance with Section 114, CPC. In my humble view all the grounds 
mentioned in sub-rule 1 of Order XLVII, CPC for review of the decree or 
order would be available to the parties of the suit whereas the last two 
grounds: (i) on account of mistake or error apparent on the face of 
record or (ii) for any other sufficient reason would appear to be available 
to the persons who are not parties to the suit. If the meaning of “any 
person” is restricted to the parties of the suit then it will negate the 
CMAs No.2745/09 etc. in CRP Nil/09 in Const. P.9 & 8/09 
87 
words “any person” appearing in Section 114, CPC which in my humble 
view would not be the intention of the Framers of rules. Therefore, I am 
of the view that the words “any person” would not only include the 
parties to the suit but also other persons.  
4. 
 
It is further pointed out that under sub-section 2 of Section 
114, CPC the sub-section 1 thereof has been excluded from application 
before this Court. Therefore, Section 114(1), CPC would not be 
applicable before this Court and so also the rules framed thereunder 
viz. Order XLVII. Nevertheless, Order XXVI Rule 1 of Supreme Court 
Rules, 1980 shows that only reference has been made to the grounds 
mentioned in Order XLVII Rule 1, CPC. The said Rule reads as under:- 
“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.” 
 
5. 
 
Thus for the purpose of review of judgment or order of this 
Court, only the grounds mentioned in order XLVII Rule 1 of CPC can be 
taken into consideration and not the Order itself or Section 114, CPC. 
However, the grounds may be other than the grounds mentioned above 
as the word “similarity” has been used, which has enlarged the scope 
from the above provisions of CPC. 
 
 
Sub-rule 6 of Order XXVI of Supreme Court Rules, 1980 
deals with entertaining and hearing of review application, which is as 
under:- 
“6. 
Except with the special leave of the Court, no 
application for review shall be entertained unless it is drawn 
by the Advocate who appeared at the hearing of the case in 
which the judgment or order, sought to be reviewed, was 
made. Nor shall any other Advocate, except such Advocate, be 
heard in support of the application for review, unless the Court 
has dispensed with the requirement aforesaid.” 
 
 
 
The above provision clearly shows that the Advocate, who 
had appeared at the hearing can draw the review application and be 
heard in support of the said application. Thus it refers to the party. 
Reference is invited to “Muhammad Rafique v. Maryam Bibi (1996 
SCMR 1867)”. However, the Court has also suo motu powers to review 
the judgment or order on its own or on receipt of any information 
through any source in any manner either written or oral. The person 
supplying information can be treated as informer and if the Court finds 
that the information is such where any of the grounds for review is 
attracted then the matter can be heard to do complete justice. 
 
   Judge