MUNIB AKHTAR, J. --- This appeal arises under Section 30A of the Pakistan. Elecronic Media Regulatory Authority Ordinance, 2002 ("PEMRA Ordinance") against an order of the Authority dated 7.12.2009. On 10.3.2010, when the matter came up for hearing, a preliminary objection was taken by learned counsel for the Authority to the effect that the appeal should be heard and disposed of by a learned Single Judge and not a Division Bench. The Bench was pleased to direct the office to examine the matter and fix the appeal in accordance with law. The office prepared a somewhat inconclusive note and placed the matter before the Hobble Chief Justice, who was pleased on 8.4.2010, to order that the matter should be examined on the judicial side. On 7.9.2010, when this aspect of the matter was brought to our attention, we requested Mr. Habib-urRehman's, who was present in Court in respect of some other matter, to assist the Court as amicus curiae.
2. On 27.9.2010, the learned amicus placed on record a detailed and exhaustive note on the issue.
He noted that an appeal is the creature of statute and that in many instances, the statute creating the right of appeal itself specifies the number of Judges by whom the appeal is to be heard and disposed of. By way of illustration, he referred to the Financial Institutions (Recovery of Finances)
Ordinance, 2001, the Customs Act, 1%9, the Industrial Relations Ordinance, 2002 and other laws in which the relevant provision creating the right of appeal itself specified that the appeal was to be heard by a bench comprising of not less than two Judges. He also referred to the Patents Ordinance, 2000 in which the relevant provision states that the appeal is to be heard by a Single Judge. In the present case, Section 30A does not specify whether the appeal is to be heard by a Single Judge or a Division Bench. After referring to various other provisions, the learned amicus opined that in his view, an appeal under Section 30A should be placed before a Single Judge, although he also expressed the view that keeping in mind the objectives and context of the PEMRA Ordinance, the Hobble Ordinance, the Hobble Chief Justice may, in the exercise of the powers vested in him, consider directing that such appeals be heard and disposed of by a Division Bench. We are grateful to Mr. Habib-ur-Rehman's for the painstaking thoroughness with which he prepared his exhaustive note and the assistance that the rendered to the Court and the valuable insights that he provided into the matter. Mr. Kashif Hanif, learned counsel for the Authority reiterated his preliminary objection that the appeal ought to be heard and disposed of by a learned Single Judge. He pointed out that previously, appeals under Section 30A had been so disposed of by this Court.
3. The question raised by means of the present preliminary objection is of course not limited to the PEMRA Ordinance, but is a question of general importance since there are many statutes which confer a right of appeal to the High Court but do not specify the number of Judges who are to hear the appeal. As is obvious, the question before us relates to the regulation and distribution of judicial business on the appellate side of this Court, and the question therefore is as to what are the .Rules which apply in such cases. A Full Bench of this Court recently considered the matter in Sindh High Court Bar Association v. Federation of Pakistan and others (PLD 2009 Kar. 408) and placing it in the relevant historical context, observed as follows:-- "It may, however, be noted that High Court Rules and Orders are being applied in exercise of appellate jurisdiction of this Court as is reflected from the judgments of this Court in the cases of The State v.
Muhammad Ashraf (PLD 1961 (W.P.) Karachi 452) and Abdul Aziz v. Abdul Wahab (PLD 1964 (W.P.)
Karachi 630) (Full Bench). This Court has also made certain amendments in the High Court Rules and Orders and one of such amendments was made by Sindh Amendment vide Correction Slip 188, published in Gazette of Sindh, Part-IV-A, dated 23.10.1975. The origin of application of the High Court Rules and Orders to this Court seems to have its source upon constitution of the High Court of West Pakistan through High Court of West Pakistan (Establishment) Order, 1955 with its principal seat at Lahore and benches at Karachi and Peshawar and Circuit Courts in other places of Province of West Pakistan. High Court Rules and Orders which were applicable to High Court of Judicature at Lahore apparently came to be applied to the West Pakistan High Court Bench at Karachi more so for the reason that through Order of 1955, the Chief Court of Sindh ceased to exist.
This was further fortified by repealing of the Sindh Court Act, 1926 (except its Section 8) by the Civil Court Ordinance, 1962. Though through subsequent High Courts (Establishment) Order, 1970 the High Court of West Pakistan ceased to exist and in its place three High Courts were established namely High Court for the Province of NWFP to be called the Peshawar High Court with its principal seat at Peshawar, High Court for the Province of Punjab and Islamabad territory to be called Lahore High Court with its principal seat at Lahore and High Court for the Provinces of Baluchistan and Sindh to be called Sindh and Baluchistan High Court with its principal seat at Karachi and by the Baluchistan and Sindh (High Courts) Order, 1976 the High Courts of Sindh and Baluchistan were separated and High Court for the Province of Baluchistan to be called High Court of Baluchistan with its principal seat at Quetta and High Court for the Province of Sindh to be called High Court of Sindh with its principal seat at Karachi were established but no change as to the application of High Court Rules and Orders to this Court was brought nor any other rules seems to have been made by the Sindh High Court in the terms provided in Article 202 of the Constitution for regulating the practice and procedure of the Court for dealing with its appellate side work." (para 11, pg. 434; emphasis supplied)
The "High Court Rules and Orders" referred by the learned Full Bench are the rules of the Lahore High Court (herein after referred to as the "LHC Rules"), and as explained, these apply by reason of the fact that, the Chief Court of Sindh (which was the High Court for the Province upto 1955) stood merged in the High Court of West Pakistan when the latter Court was created in that year alongwith the creation of the new Province of West Pakistan. All the existing High Courts in the western wing (as it then was) ceased to exist on the creation of the new High Court, and it was provided that the LHC Rules would apply to it. This High Court ceased to exist alongwith the Province of West Pakistan in 1970 and was succeeded by three High Courts, of which one was the High Court of Sindh and Baluchistan, which was itself replaced, in 1975 by two High Courts, one for the Province of Sindh (i.e., this Court) and the second for the Province of Baluchistan.
4. The important point for present purposes is that at each stage, i.e. In 1970 and then in 1975, the relevant Order specifically provided that the rules applibable to the High Court that was ceasing to exist would apply to the succeeding High Courts. It is for this reason therefore, that as noted by the learned Full Bench, the LHC Rules (at least on the appellate side) were applicable to this Court, and since this Court has not yet exercised the powers vested in it under Article 202 of the Constitution to frame new rules, the said Rules continue to be applicable. The only gloss that we would and to the observations of the learned Full Bench is that it is important to keep in mind that the LHC Rules apply to this Court as they stood on 1.7.1970, which was the day on which the erstwhile High Court of West Pakistan ceased to exist, and any changes subsequently made in or to the said Rule by the Lahore High Court apply only to the latter Court. This is especially important in the present case since, as will shortly be seen the relevant provision of the LHC Rules is to be found in Chapter 3B of Volume V, and this has been extensively amended and substituted subsequently by the Lahore High Court. Those changes have no application to this Court. On the other hand, any changes made to the LHC Rules by the erstwhile High Court of Sindh and Baluchistan do apply to this Court since that Court (which ceased to exist on 1.12.1976) was the direct predecessor of this Court. One such change, made on 23.10.1975 and noted by the learned Full Bench, is directly relevant for present purposes since this change also amended Chapter 3B of Volume V.
5. We now turn to Chapter 3B of Volume V of the LHC Rules as applioable to this Court. This is titled "JURISDICTION OF A SINGLE JUDGE AND OF BENCHES OF THE COURT", and insofar as is presently relevant provides (on the basis of the record as available to us) as follows:-- "(1) Subject to the provisos herein after set forth and except as otherwise provided, the following classes of cases shall ordinarily be hard and disposed of by a Judge sitting alone:-
(iv) a civil appeal, application or reference under any Act of the Central or Provincial Legislature other than the Code of Civil Procedure and other than the Divorce Act, if such appeal, application or reference is not otherwise expressly provided for; Provided that---
(a) a Judge may, if he thinks fit, refer any matter mentioned in any of the clauses of this rule... To a Division Bench of two Judges, ...."
Save as provided by law or by these rules or by special order of the Chief Justice, all cases shall be heard and disposed of by the Bench of two Judges."
As will be seen from the foregoing, clause (iv) of Rule 1 provides a direct answer to the question at hand. If the statutory provision creating a right of appeal to the High Court itself expressly provides for the number of Judges who are to hear and dispose of the said appeal, then of course that provision is to prevail. However, if there is no such provision, then (other than an appeal arising under the Code of Civil Procedure and the Divorce Act) the appeal is to be heard and disposed of by, a learned Single Judge. This is subject to the proviso which enables the Single Judge, if he so thinks fit, to refer any matter actually pending before him to a Division Bench.
6. In view of the foregoing, the preliminary objection taken by learned counsel for the Authority is sustained and the office is directed to place this Appeal for further proceedings before a learned Single Judge according to roster. A copy of this order should also be placed immediately before the Registrar of this Court who is directed to circulate the same among all the concerned branches, both at the principal seat and at the Benches at Sukkur, Hyderabad and Larkana for appropriate action. All appeals should in future be fixed before a Single Judge or a Division Bench (as appropriate) in terms as stated herein above. However, it is clarified that nothing in this order shall apply in respect of an appeal which should have been C.L.R. placed before a Single Judge, but which has been heard by a Division Bench and in which judgment has been reserved. In the case of an appeal which ought to have been heard by a Single Judge, but which is part heard before a Division Bench, this order may be brought to the attention of the concerned learned Bench for such orders as the Bench may consider appropriate. .