' AJMAL MIAN, J.---Leave to appeal was granted against the judgment dated 31-5-1982 passed by a learned single Judge of the Lahore High Court in Writ Petitions No, 988 of 1981 and 1089 of 1981. The question has arisen, whether the above two appeals arising out of the above two judgments are to be heard by a Bench comprising of two Judges or three Judges. In order to resolve the above controversy, we will have to refer Order XI (hereinafter referred to as the Order) of the Pakistan Supreme Court Rules, 1980 (hereinafter referred to as the Rules), which reads as follows:-- "Save as otherwise provided by law or by these Rules every cause, appeal or matter shall be heard and disposed of by a Bench consisting of not less than three Judges to be nominated by the Chief Justice: ' Provided that the petitions for leave to appeal, other than those directed against acquittal and appeals from appellate or revisional judgments and orders made by a Single Judge in the High Court, may be heard and disposed of by a Bench of two Judges, but the Chief Justice may, in a fit case, refer any cause or appeal as aforesaid to a larger Bench: ' Provided further that if the Judges hearing a petition or an appeal are equally divided in opinion, the petition or appeal, as the case may be, shall, in the discretion of the Chief Justice, he placed for hearing and disposal either before another Judge or before a larger Bench to be nominated by the Chief Justice."
2. The Order provides that save as otherwise provided by law or the Rules every cause, appeal or matter shall be heard and disposed of by a Bench consisting of not less than three Judges to be nominated by the Chief Justice. Whereas first proviso to the Order lays down that petitions for leave to appeal, other than those directed against acquittal and appeals from appellate or revisional judgments and orders made by a single Judge in the High Court may be heard and disposed of by a Bench of two Judges but the Chief Justice may, in a fit case, refer any cause or appeal as aforesaid to a larger Bench. Whereas the second proviso deals with the question, what is to be done when the Judges hearing a petition or an appeal are equally divided in opinion and it provides that Chief Justice may either refer the case to another Judge or may order its disposal by a larger Bench.
3. The first proviso to the Order is the relevant proviso for the purpose of deciding the question in issue. As pointed out hereinabove it provides the cases mentioned therein to be heard by a Bench of two Judges, namely,
(i) all the petitions for leave to appeal other than those directed against acquittal;
(ii) appeals from appellate or revisional judgments; and
(iii) orders made by a single Judge in the High Court.
' The questions which require consideration are, as to whether orders made by a single Judge in the High Court referred to hereinabove in sub-para (iii) are only those, which are passed by a single Judge in exercise of appellate or revisional jurisdiction referred to in above sub-para (ii) or whether they will cover all orders which a single Judge in the High Court may pass in exercise of any jurisdiction including writ jurisdiction, To put it differently, whether the word "and" appearing between the above two sub-paras (ii) and (iii) is to be construed conjunctively or disjunctively. In other words, whether we can construe the word "and" as "or" or should it be construed as "and" in the Order. If we were to construe above word conjunctively, the effect would be that the orders of a single Judge referred to in above sub-para (iii) would be only those orders, which are passed in exercise of appellate and revisional jurisdiction referred to in above sub-para (ii), but if we were to construe it disjunctively the orders referred to in above sub-para (iii) will include all orders passed by a single Judge in exercise of any jurisdiction.
' At this stage, it may be pertinent to refer to the following cases and treatises on the question as to when the word "and" can be construed as "or" and vice versa.
(i) Muhammad Hussain v. The Additional District Judge, Lahore and others PLD 1966 (W.P) Lah.
128.
' In this case a Division Bench of the erstwhile High Court of West Pakistan while construing section 17(1) (a) of the Payment of Wages Act construed the word "and" between the words "wages" and "compensation" as "or". Reliance was placed inter alia on the case of Chief Inspector of Factories v.
V.K. Modi AIR 1952 All 804, the case of R. v. Brixton Prison Governor ex parte Bidwell (1937) 1 KB 305, the case of Muhammad Amin v. Jamshed Ali PLD 1963 Lah. 523 and the Maxwell on Interpretation of Statutes 1962 Edition at pages 229-230. The relevant observation reads as follows:-- : However, a different view was taken in a later case in Chief Inspector of Factories v. V.K. Modi AIR 1952 All 804, wherein it was held that there is nothing in section 17 to suggest that before an order is appealable both compensation and wages should be ordered to be paid. All that is necessary is that the total sum ordered to be paid should exceed Rs, 300. It may be composed of wages alone or compensation alone or wages and compensation. If we may say so with respect, this view appears to be more reasonable. As pointed out in Maxwell on Interpretation of Statutes 1962 Edition at pages 229-230, it is occasionally found necessary to read the conjunctions "or" and "and" one for the other to give effect to legislative intention. This was examplified by reference to the provisions of Disabled Soldiers Act, 1601 (clause 3), regarding property to be employed for the maintenance of "sick and maimed soldiers". It was held in R. v. Brixton Prison Governor ex parte Bidwell (1937) 1 KB 305, that the word "and" has been used in the sense of the word "or", and, therefore, refers to Soldiers, who were either the one or the other and not only to those who were both. Reference is also made to cases in which conjunction "or" has been read as "and" when it appears more consistent with reason to do so or the result is more favourable to the subject, particularly in the interpretation of a penal statute. Accordingly, we hold that the conjunction "and" in section 17(1) of the Act has to be read in the disjunctive sense of "or" and, therefore, the appeal to the Additional District Judge was perfectly competent. This conclusion is also in consonance with the principle laid down recently in Muhammad Amin v. Jamshed Ali PLD 1963 Lah. 523 that a right of appeal is usually the creation of a statute, and in deciding whether there is a right of appeal, the principle to be followed is that the benefit of doubt should go to the party, who seeks to establish the right of appeal."
(ii) Badsha Mian v. The State PLD 1966 Dacca 1.
' In the above case a Division Bench of the Dacca High Court while construing section 5(1) of the East Pakistan Anti-Corruption Act, 1957, construed word "and" as "or."
(iii) Salehon and others v. The State PLD 1969 SC 267.
' This Court while construing section 497(1) Cr.P.C. Construed the word "or" in the exception clause and the proviso thereto as "and", the relevant portion of the observation reads as follows:-- "The answer to the question raised in the appeal lies in finding out whether the word "or" in the exception clause is used in disjuctive or conjunctive sense. Ordinarily "or" is used in disjunctive sense. The governing rule, however, is to carry out the intention of the Legislature. It may be found necessary to read the conjunctions 'or' and 'and' one for the other depending on the consequences intended by the Legislature."
(iv) Farooq Ahmad Khan Leghari and 37 others v. Sh. Muhammad Rashid, Chairman, Federal Land Commission and another PLD 1981 Lah.
159.
' In this case a Division Bench of the Lahore High Court while construing para. 29 of the Land Reforms Regulation construed the word "and" disjunctively and observed that it is not conclusive rule of interpretation that the word "and" is to be always used conjunctively and that in fact it is for the Court to interchange these words to save redundancy, anomaly, absurdity or to conform to the clear intention of the Legislature.
(v) Federation of Pakistan v. Hazoor Bakhsh and 2 others PLD 1983 FSC 255.
' In the above case the Federal Shariat Court while construing the word "and" used in Article 203-D between the expression "Holy Conran and Sunnah" construed the same disjunctively.
(vi) R. v. Oakes (1959) 2 All ER.
92.
' In this case the Court of Appeals of England while construing the provisions of section 7 of the Official Secrets Act, 1902, held that the word "or" should be read in place of the word "and" in the phrase "and does any act preparatory to".
(vii) Bindra's Interpretation of Statutes 7th Edition at page 537. Has commented upon the construction of the word "and" and "or" as follows:-- "Conjunctive and disjunctive words.--The word "and" in a statute may be read as "or" and vice versa, whenever the change is necessary to effectuate the obvious intention of the Legislature. The Courts should, however, have recourse to this exceptional rule of construction only when the conversion of the words "and" and "or" one into the other, is necessary to carry into effect the meaning and the intention of the Legislature; or produces unintelligent or absurd result. It has been held that neither the language of section 12(1) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, nor its context justifies interpretation of the word 'or' occurring between clauses (a), (b) and (c) of that subsection as 'and'. It has been held that the disjunctive "or" used in the third column against item (8) of section 167 of the Sea Customs Act, 1878, cannot be held to be used in the sense of a conjunctive so as to limit the power of the Customs Officer to imposition of fine not exceeding one thousand rupees. It has been held that the word 'or' occurring in the definition of "manufacturing process" must be treated as 'and' to satisfy the definition of "manufacturing process" in section 2 of the Factories Act, 1948. When the statute is criminal or penal in its nature, the better view point with respect to the use of the rule is that conjunctive words should not be construed as disconjunctive, and vice versa, when the effect would be to aggravate the offence or increase the punishment."
(viii)Reference may also be made to the following passage from the Maxwell on Interpretation of Statutes 12th Edition at page 232.
"In ordinary usage, "and" is conjunctive and "or" disjunctive. But to carry out the intention of the legislature it may be necessary to read "and" in place of conjunction "or", and vice versa.
' The Disabled Soldiers Act, 1601, for example in speaking of property to be employed for the maintenance of "sick and maimed soldiers", referred to soldiers who were either sick or maimed, and not only to those who were both.
' The expression "local and public authorities" in section 4(2) of the Prevention of Corruption Act 1916 has been held by Winn, J. Not to "mean authorities which are both local and public (but) authorities which are either local or public."
4. From the above-cited cases and the passage from the well-known treatises on the Interpretation of Statutes, it is evident that the words "and" and "or" are interchangeable and the word "and" can be construed as "or" and vice verse if the change is necessary to effectuate the obvious intention of the lawmaker or the statutory rules framer.
5. Though the judgment given by this Court in the case of Abdul Rahim and another v. Ghulam Nabi and others 1985 SCMR 173, does not contain any detailed discussion on the issue in hand, but it has touched upon this aspect as follows:-- 'In support of this petition for review, it has been urged firstly that the respondents' Civil Petition on its conversion into appeal ought to have been heard by a Bench "consisting of, at least, three Judges." This is, however, not supported by the provision of Order XI under which petitions for leave against "orders made by a Single Judge of the High Court" may be heard and disposed of by a Bench of two Judges. Here the order of the High Court impugned in the Civil Petition was by a Single Judge of that Court."
6. Apart from the fact that the word "and" is susceptible to be construed disjunctively and can be construed as "or", there is another strong reason for placing above construction, namely, long consistent practice of this Court of interpreting the word "and" appearing in the first proviso to the Order as "or". This has also been so construed by the learned counsel at the Bar as except in the above-reported judgment of this Court in the Abdul Rahim (ibid), this position was never contested: It is an admitted position that the appeals arising out of orders or judgments passed by a learned single Judge of the High Court inter alia while exercising writ jurisdiction have been consistently heard by Benches comprising of two learned Judges for several decades. We may point out that prior to the framing of the Order under the Rules of 1980 even the Supreme Court Rules of 1956, had Order XI, which was couched more or less in the same language as the Order, and the same was construed and acted upon in the manner, which we are inclined to adopt in the present case while construing the Order.
7. The Court practice is a well-recognized mode of regulating the proceedings before the Court concerned. The Court practice in its wider sense like procedure connotes the mode of proceeding by which a legal right is enforced, as distinguished from the law that gives and defines the right. It may be instructive to refer to the judgment given by this Court in the case of Mst. Shamim Akhtar v.
Syed Alam Hussain and others reported in 1975 SCMR 16; wherein the question, to what extent the practice of this Court is binding, has been succinctly dilated upon by Hamoodur Rehman, C. J. As under:-- "4. Learned counsel appearing in support of the review has contended that after this Court came to the conclusion that the question of law, for the consideration of which leave to appeal was granted, had been rightly decided by the High Court, it should not have gone on to consider any further question, according to its and the Privy Council's established practice.
5. In support of this practice, learned counsel has referred us to a decision of the Privy Council in the case of John E. Brownlee v. Vivian Macmillan, AIR 1940 PC 219, where the Privy Council refused to allow counsel to argue points on which leave to appeal had not been granted, and a decision of this Court in the case of Ashfaqur-Rchman Khan v. Ch. Muhammad Afzal PLD 1971 SC 766 where too this Court refused leave to the learned counsel to agitate points on which leave to appeal had not been granted.
6. It is no doubt true that the general practice of this Court, following the Privy Council practice, has been as suggested by the learned counsel; but this is not an inflexible rule, and there may well be cases in which this Court, in the interest of justice, may be constrained to depart from this practice, although such cases will, no doubt, be extremely rare. This Court has undoubtedly the power, under the Constitution itself, to do complete justice and, therefore, it has never tied itself down in such a manner as to deprive itself of this power. Thus, in the case of S. Sibtain Fazli v. Star Film Distributors PLD 1964 SC 337 in which learned counsel Mr. A.K. Brohi himself appeared, the majority of the Court, allowed a law point to be argued even though it was neither raised in the petition for special leave to appeal nor in the additional grounds subsequently filed or in the concise statement. Again, in the case of Pakistan v. Waliullah Sufyani PLD 1965 SC 310, certain objections taken in a petition of cross- objection filed without the leave of the Court were considered at the argument stage in the appeal, by treating the cross-objection as a petition for special leave to appeal and condoning the delay in the filing thereof. Next in the case of Abdul Majid Khan v, Chief Settlement and Rehabilitation Commissioner PLD 1968 SC 154, the Court allowed a question of law to be raised, even though it was not a point on which leave had been granted. The relevant passage from the judgment of the Court reads:- "The only question, therefore, that now arises for consideration is as to whether the Settlement Authorities were right in treating each room comprised in premises No, W/432 as an independent Commercial unit and since this is the real question now in issue we have allowed learned counsel appearing in support of the appeal of Sh. Muhammad Hassan to raise this question even though this was not a point on which leave was granted."
' It would thus appear that it is not correct that this Court has never departed from this rule of practice. It cannot, therefore, be maintained that any and every departure from this rule - no doubt a salutary rule would result in the exercise of a jurisdiction not possessed by the Court and thereby constitute an error apparent on the face of the record. The jurisdiction is there; but whether, and in what circumstances, the Court will exercise it, is an entirely different matter.
' The rule is at best a rule of practice only developed as a result of the practice of the Judicial Committee and, therefore, like all rules of practice it can legitimately be departed from if the interests of justice so demand. The Judicial Committee itself adopted this principle in the case of Bidhabati v. Ramendra Narayan AIR 1947 PC 19 and departed from an equally established rule that it will not in civil matters interfere with a concurrent finding of fact. This Court also did the same thing in the case of Federation of Pakistan v. Ali Ihasan PLD 1967 SC 249."
8. Additionally if the appeals arising from the appellate and revisional orders/judgments passed by a single Judge in the High Court can be heard by a Bench of two Judges of this Court, there seems to be no plausible reason, as to why the appeals arising from the orders/judgments, which may have been passed by a single Judge of the High Court in exercise of other jurisdictions than the appellate and revisional cannot be heard by a Bench of two Judges. We are, therefore, of the view that the above word "and" used in the first proviso of the Order is to be construed as "or" and, therefore, appeals arising out of the orders or the judgments passed by a learned single Judge in exercise of writ or other jurisdiction besides appellate and revisional jurisdiction can be heard by a Bench comprising two Judges.