JAWWAD S. KHAWAJA, J.-- These matters were listed for hearing on 10-7-2013. The petitioners have sought permission of the Court to withdraw their Review Petitions. Applications have also been moved by the petitioners wherein they have prayed that the "Review Petition[s] may kindly be allowed to be withdrawn unconditionally". Ordinarily, the matter would have been simple enough and the Review Petitions could have been permitted to be withdrawn and would have been dismissed accordingly. In the present cases, however, a difficulty presents itself as discussed below.
2. The unanimous short Order of the Court dated 11-4-2013 in operative part held and declared "that the law enunciated in the case of Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522) is per incuriam and consequently this judgment is set aside. The titled appeal is accepted and the judgment impugned therein is also set aside". Reasons in support of this Order were issued later, and therein lies the difficulty adverted to above. Two members of the learned Bench have, consistent with the wording of the Order of 11-4-2013, stated in their reasoning that all consequences of the said Order will follow and as a result, of benefits, if any, received by any person by virtue of the judgment in the case of Accountant General v. Ahmed Ali U. Qureshi (PLD 2008 SC 522) will have to be returned to the public exchequer, being money of the people of Pakistan. However, three of the learned Judges have, in their reasoning observed that the amounts received by various persons pursuant to the aforesaid judgment in the case of Ahmed Ali U.
Qureshi supra, need not be returned to the public exchequer, notwithstanding the Order dated 11- 4-2013 which was passed by all five learned members of the Bench. With humility and great respect to these learned brother Judges it appears that settled principles of law (discussed below) enunciated by this Court may have escaped their notice.
3. It is not necessary at this stage, to go into the respective reasoning of the five learned Judges. In my humble opinion, as settled by this Court it would be the short Order dated 11-4-2013 which will be determinative of the rights and obligations of the various parties in the matter. It has not been said in the short Order that the consequences thereof will not follow in relation to some amounts despite the setting aside of the case of Ahmed Ali U. Qureshi. The reasoning which was recorded at a later date can only be in support of the said short Order and not in deviation from the same.
Short orders have consistently been considered sufficient by this Court for disposal of a lis as well as being operative for all intents and purposes. In the case of State v. Asif Adil and others (1997 SCM R 209.) it has been observed that "short orders which have been recorded and signed by the judges concerned and have been pronounced in Courts shall be fully operative in law and in consequence thereof the cases in respect of which the same have been passed shall stand disposed of in law". Similarly, in the case of Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan (PLD 2010 SC 61) while commenting upon the delay of almost two and a half years in providing the reasons of the short Order of July 20, 2007, it was observed that "the said judgment of the 20th of July had been signed by all the thirteen Honourable Members of the Bench and, even in the absence of the supporting reasons, was a valid judgment ...". The situation which has now arisen, as noted, is in some ways akin to the well recognized distinction between a 'decree' and 'judgment' in civil matters. It is the decree which is operative and is required to be implemented and not the reasoning compiled in a judgment. In the case at hand the short order of 11-4-2013 is analogous to a decree -while the detailed reasoning of each of the five learned Judges (given separately) can be equated with a judgment. Furthermore, the 'decree' i.e, operative order has been made by all five learned Judges while each of them has given his own respective reasons; some of which I say with the utmost respect, are not in line with the unanimous order dated 11-4-2013. The Auditor General of Pakistan and the Accountant-General of Pakistan Revenues
(AGPR) may, therefore unnecessarily find themselves in confusion, because in my humble view they will have to follow the Order dated 11-4-2013 in letter and spirit with all consequences of such Order taken to their logical and legal conclusion.
4. In the foregoing circumstances, it is necessary to state that the reasoning of the learned Judges can only support the Order dated 11-4-2013 and cannot be in variation from the same. Therefore, while the petitioners are allowed to withdraw their Review Petitions, this is subject to the reiteration of the legal principle that the Order to be implemented is the one dated 11-4-2013 with all consequences flowing from the same without exception.
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Jawwad S. Khawaja, J ' With due deference and humility at my command, I have appended my separate note for high lighting my point of view.
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Anwar Zaheer Jamali, J ' With due deference I am unable to agree with the opinion of my learned brother Justice Jawwad S. Khawaja, J and Justice Anwar Zaheer Jamali, J, therefore have composed my own opinion in the matter.
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Mian Saqib Nisar, J ' With due deference I have voiced my view in the note.
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Ejaz Afzal Khan, J ' I agree with my learned brother Jawwad S. Khawaja J., however I will add that any finding given by my brother Mr. Justice Anwar Zaheer Jamali, J. Which tends to vary the spirit of short order will not have any binding effect.
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Ejaz Ahmed Chaudhry, J ' I have penned a separate opinion as I respectfully differ with the opinion of my learned brother Jawwad S. Khawaja, J and agree with the opinion of my learned brother Saqib Nisar, J.
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Muhammad Ather Saeed, J ' I have gone through opinions of my learned brothers and I humbly differ with the opinion of my learned brother Mr. Jawwad S. Khawaja, J and Mr. Anwar Zaheer Jamali, J. While I am totally in agreement with the opinion of my learned brother Mr. Saqib Nisar, J.
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Iqbal Hameed ur Rahman, J I have had the benefit of going through the above order articulated by my learned brother Jawwad S. Khawaja, J. Indeed , review petitioners have every right to withdraw their respective petitions unconditionally, therefore, they cannot be denied such right. However, keeping in view the lucid reasons contained in this order, which are germane to the core issue that despite unanimous short order of the Court subsequently there has been difference of opinion, I deem it appropriate that the matter may be referred to the Honourable Chief Justice of Pakistan to take up this case suo motu by constituting a larger Bench to resolve such difference of opinion amongst the five members Bench in C the instant case. More particularly, when huge sum of public exchequer is involved in the matter, which is a sacred public trust, and the final outcome of this controversy is likely to affect large number of other similar cases involving recovery of public exchequer.
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Anwar Zaheer Jamali, J MIAN SAQIB NISAR, J.---I have the privilege of going through the order passed in the matter by my learned brother Jawwad S. Khawaja, J. Which has been endorsed by my learned brother Ijaz Ahmed Chaudhry, J. I also with respect have perused the order of my learned brother Anwar Zaheer Jamali, J. However, with all the humility at my command and with deepest regard to my learned brothers, my opinion is somewhat different.
2. There is great wisdom in law, that the review, generally and ordinarily should be heard by the same Court and the Court in this context is an interchangeable term with the Judge. The object behind the above principle is, that the Court/Judge who has heard and decided the matter has a full comprehension as to what was argued before him; what was debated upon at the time of hearing of the matter (order under review) and what was the understanding of the Judge while adverting and attending to the pleas raised before him at the time of hearing of the matter and passing the order/judgment. It is so because while exercising the review jurisdiction, which otherwise has a limited scope, the judgment/order under review could be analyzed and heeded to by the Court/Judge, inter alia, in the light of the above considerations. When the short order dated 11-4-2013 in Constitution Petition No,127 of 2012 was being deliberated and composed, there was complete consensus amongst the Members of the Bench that the law enunciated in the judgment reported as Accountant-General, Sindh and others v. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522) should be declared as per incuriam and the said judgment should be overruled. However, at the same time consensus could not be developed about the recovery of the amount already received by the hon'ble retired Judges on the basis of the judgment, or in other words if the judgment should have retrospective effect or not, therefore, it was consciously, as per the clear understanding of the Members of the Bench, left open for each of the Hon'ble Judge(s) to give his/their own decision, which would follow the short order. The short order thus was never formulated and was not meant to be final and conclusive in regard to the recovery of the said amount; and thus the detailed reasons in this context were avoided. It is for such reason that it was not provided in the short order what consequences shall follow and it is not always necessary that in the eventuality of setting aside a judgment under challenge in any proceedings, it shall entail all the conceivable consequences. In any case, the Court/Bench consciously refrained to provide and specify that the amount already received by the hon'ble retired Judges shall be recovered from them, and the judgment shall have retrospective effect. Therefore, in my candid view three Members of the Bench, who have declined the recovery have passed the judgment(s) well within their authority and nothing eluded their attention while doing so. In the above backdrop, it may be emphatically stated that the reasoned judgment(s) given by three learned Members of the Bench on the issue about the non-recovery of the amount already received by the hon'ble retired Judges in no way is either beyond the scope of the short order, or in variation or in deviation or in derogation thereof (emphasis supplied), which should be construed and implemented to be so, on the touchstone of the law and the reasoning assigned and propounded by my learned brother(s).
Resultantly, I do not find any justification for clarification in the matter, as is envisaged by Paragraph No,4 of the order of my learned brother.
3. During the course of hearing of the noted review petitions on 11-7-2013, I have also learnt that certain other petitions filed by some of the hon'ble retired Judges against the said short order had already been dismissed as having been unconditionally withdrawn by a Bench headed by my learned brother Anwar Zaheer Jamali, J. Furthermore, from the present order of my learned brother, it is clearly spelt out that the present petitions are also allowed to be withdrawn but "subject to the reiteration of the legal principle that the order to be implemented is the one dated 11-4-2013 with all the consequences flowing from the same without any exception". This would clearly mean that the verdict of three Members (majority view) of the Bench hearing the matter, by virtue whereof the said retired Judges had acquired a right against the recovery/refund of the amount has been set at naught. I am not sure if this could be so legally done, because the Hon'ble Judges who were not the part of the Bench which heard the matter would not like to sit as a court of appeal, while considering the review matter. Be that as it may, some similar review petitions had been earlier allowed to be withdrawn (by some other Bench) as mentioned above, in which no such condition has been imposed and even when the present review petitions were considered the petitioners were not confronted with the proposition which is the basis of the decision of my learned brother; they were never put to notice that such condition is/was being imposed by virtue whereof they shall be deprived and denuded of the benefit/ right (whatever it may be called) which they have attained on account of majority decision of the Court; they were even not apprised of the said point during the course of hearing. In the above circumstance, I am uncertain if the rule of natural justice, which is a salutary principle of dispensation of justice, on the basis of which we daily interfere in executive/administrative actions and even adjudge quasi judicial and judicial decision, has been adequately adhered, followed and satisfied in letter and spirit. Unmistakably while seeking unconditional withdrawal of their review petitions this proposition was not put to them.
Besides, the Federation/State (even the respondent of the case or the Accountant General of Pakistan) has not come forward to challenge in review the majority judgment, passed pursuant to the short order dated 11-4-2013.
4. In respect of the opinion of my learned brother Anwar Zaheer Jamali, J., the Hon'ble Judge seemingly has allowed the withdrawal unconditionally when it is held "indeed, review petitioners have every right to withdraw their respective petitions un-conditionally". And I am perhaps also right in assuming that earlier similar petitions were allowed to be withdrawn by a Bench headed by my learned brother unconditionally; however my learned brother has requested the Hon'ble Chief Justice of Pakistan to take up the matter in suo motu jurisdiction and by constituting a larger Bench to resolve the difference of opinion amongst the five Members Bench in Constitution Petition No,127 of 2012, to the extent of the recovery issue; the reasons in this behalf are propounded in the order of my learned brother. Though I have no intention to join issue about the authority of the Hon'ble Chief Justice of Pakistan to take suo motu action in appropriate cases and to constitute Benches accordingly for hearing the such matter; but at the same time, I have been mulling, if only for the reason that in a given case (any case) the majority of the Judges on any legal or factual issue have taken a different view, and huge sum of public money is involved, a suo motu action is warranted.
In the light of above, I am of the firm opinion that, as the petitioners have unconditionally withdrawn their review petitions, which is their right under the law, therefore, these petitions be dismissed simpliciter as withdrawn, as has been done in some other petitions which were earlier dismissed by another Bench.
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Mian Saqib Nisar, J I have gone through the order authored by my learned brother Justice Jawwad S. Khawaja. The reasons recorded in the order may have some substance but no sweeping opinion as to the effect of the short order or the detailed reasons therefor, could be given without hearing the petitioners on this issue.
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Ejaz Afzal Khan, J MUHAMMAD ATHER SAEED; J.---I have had the privilege and the opportunity of perusal of the order passed in the above Review Petitions by my learned brother Jawwad S. Khawaja, J, to which my learned brother Ijaz Ahmed Chaudhry, J has endorsed his agreement. I have also perused the orders of my learned brothers Anwar Zaheer Jamali, J and Mian Saqib Nisar, J, who have authored their separate notes. With great respect I find myself not able to agree with the provisions of the order authored by my learned brother Justice Jawwad S. Khawaja and find myself in full agreement with my learned brother Justice Mian Saqib Nisar-who has very elaborately dealt with the points raised by my learned brother Jawwad S. Khawaja, J.
2. While fully endorsing the opinion expressed by my learned brother Mian Saqib Nisar, J, I would like to add that in my humble view the mandate of the seven member Bench was to hear and dispose of the Review Petitions filed for the review of the judgment of five member Bench which had declared that the law enunciated in case of Accountant General Sindh and another v. Ahmed Ali Qureshi and another, is per incuriam and had set aside the judgment. At the time of hearing all these Review Petitions before this Bench, all the above Review Petitions were withdrawn and my learned brother Jawwad S. Khawaja, J, had vide order referred to above, allowed the petitioners to withdraw the Review Petitions. However he has subjected this withdrawal to the legal principles enunciated by him that the order to be implemented is the short order dated 11-4-2013, with all consequences flowing from the same without exception. With great respect to my learned brother I am of the humble view that this Bench was only constituted to hear and decide the Review Petitions and was not mandated to decide the issue as to whether the short order dated 11- 4-2013 or the reasons enunciated in support of the short order were to be implemented and therefore while allowing the withdrawal of these Review Applications they could not be subjected to legal principles enunciated by my learned brother Jawwad S. Khawaja, J. I am also of the view that once the Review Petitions have been unconditionally withdrawn as per the withdrawal applications and submissions of the petitioners and their learned counsel, then no condition can be attached to these withdrawals by the Honourable Bench specially without giving any notice of the intention to apply this condition to the Review Petitioners and hearing them on this point.
3. My learned brother Mian Saqib Nisar, J has elaborately explained the deliberations of the Bench before passing the short order on the point whether the said judgment will apply retrospectively or prospectively which was deliberately kept open to be enunciated by a detailed judgment highlighting the reasons for such decision and therefore when detailed reasons were given and by majority view it was held that the judgment had prospective application then there is no question left to be decided by this Honourable Bench as to which of the two judgments is to be implemented. Even otherwise as explicitly explained by my learned brother Mian Saqib Nisar, J, no decision was required on this aspect of the matter.
4. With these comments I strongly endorse the opinion written by my learned brother Mian Saqib Nisar, J. And therefore dismiss the Review Petitions as being withdrawn.
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Muhammad Ather Saeed, J ORDER OF THE BENCH The case file has now been received back by me. My three learned brothers (Justice Mian Saqib Nisar, Justice Muhammad Ather Saeed, and Justice Iqbal Hameedur Rahman) have held that the petitioners be allowed to withdraw their review petitions simpliciter. Three brothers (Justice Anwar Zaheer Jamali, Justice Ijaz Ahmed Chaudhry and myself) have reiterated the contents of the short order dated 11-4-2013 while allowing the review petitioners to withdraw their petitions. However, our learned brother Justice Anwar Zaheer Jamali, has also suggested that the matter be referred to Hon'ble the Chief Justice for constituting a larger Bench.
2. Our learned brother (Justice Ejaz Afzal Khan) has opined as under:-- "I have gone through the order authored by my learned brother Justice Jawwad S. Khawaja. The reasons recorded in the order may have some substance but no sweeping opinion as to the effect of the short order or the detailed reasons therefor, could be given without hearing the petitioners on this issue".
3. In view of the above, the matter may be fixed for re-hearing in Court so that the petitioners can be heard and any apprehension that the Review Petitioners may have unwittingly withdrawn their petitions, without realizing the consequences of withdrawal simpliciter, may be allayed and they may have the opportunity of addressing the Court (despite unconditional withdrawal of their review petitions).
(Sd.) Jawwad S. Khawaja, (Sd.) Anwar Zaheer Jamali, J I have the honour of going through the order of my learned brother Jawwad S. Khawaja, J and with due respect, do not find myself in accord thereto. I have already expressed my view and hereby reiterate the same that the review petitions should be dismissed as withdrawn simpliciter; and that there is no need for re-hearing of the said petitions, obviously when the petitioners have not pressed the same and have withdrawn their cause unconditionally. However, if the majority view of the Bench is, that the matters should be re:heard, I shall be pleased to be part of such bench.
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Mian Saqib Nisar, J ' I agree as per my note.
(Sd.) Ejaz Afzal Khan, J ' I agree.
(Sd.) Ijaz Ahmed Chaudhry, J ' My view has been expressed in my separate note attached. (Sd.) Muhammad Ather Saeed, J ' My view is expressed in a separate note. (Sd.) Iqbal Hameedur Rahman, J ' Though the review petitions filed by the petitioners in this case are dismissed as withdrawn, yet a controversy has cropped up whether the short order or the detailed reasons would reign supreme inasmuch as the later justify retention of the benefits already received under the judgment reversed in review on having been declared per incuriam. The situation thus emerging appears to be unprecedented, if looked at in view of the judgments rendered by this Court, from time to time. Therefore, there is absolutely no harm if the petitioners are heard on this issue.
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Ejaz Afzal Khan, J MUHAMMAD ATHER SAEED, J.- I have today received the proposed order of the Bench in Civil Revision Petitions Nos. 102, 103, 105, 108, 129, 179, 185 and 186 of 2013 and C.M.A. No,2990 of 2013 in C.R.P. No,Nil of 2013 authored by my learned brother Jawwad S.Khawaja, J. And with great respect I find myself unable to agree that the learned Bench has passed the above order because all the review petitions had been withdrawn unconditionally and therefore had to be dismissed as such.
The question whether the short order or the reasons enumerated were applicable was not before this Bench and therefore this point could not have been decided by this Bench. I am of the opinion that after withdrawal of the review petitions the dismissal order has become a past and closed transaction and the question proposed by learned brother can only be decided in suo motu review, if such powers are exercised. I, therefore, agree with my learned brother Mian Saqib Nisar, J. That the order of Bench should be that the review petitions should be dismissed as withdrawn simpliciter. However, if on the basis of majority view of the Bench the matter is re-heard I will please to be a part of the Bench.
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Muhammad Athar Saeed, J IQBAL HAMEEDUR RAHMAN. J---I have gone through the Order of the Bench propounded by my learned brother Jawwad S. Khawaja J, with due diligence, and with respect and humility I do not find myself in consonance with the same. In my humble opinion all review petitions deserve to be allowed as withdrawn simpliciter unconditionally and the matter be deemed to be a past and closed transaction therefore, I agree with learned brothers Mian Saqib Nisar, J and Muhammad Ather Saeed, J that the Review Petition be dismissed as withdrawan simpliciter. However, if on the basis of majority view of the Bench the matter is re-heard I will be pleased to be a part of the Bench.
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Iqbal Hameedur Rahman, J