Following the recusal of two judges, a three-member bench headed by Chief Justice of Pakistan Umar Ata Bandial has resumed the hearing of the Punjab and Khyber Pakhtunkhwa election delay case.
The other two members of the bench are Justice Ijaz Ul Ahsan and Justice Munib Akhtar.
The bench was converted into a three-member bench after two judges, earlier part of the case, recused themselves. Justice Amin-Ud-Din Khan was the first member to recuse himself.
While Justice Jamal Khan Mandokhail also withdrew himself from the Supreme Court bench earlier today making it the second time in consecutive days that the bench has been dissolved.
Initially, a five-member larger bench of the top court was formed on Monday to hear Pakistan Tehreek-e-Insaf's (PTI) plea against the delay in elections in Khyber Pakhtunkhwa and Punjab.
The initial bench comprised CJP Bandial, Justice Ahsan, Justice Akhtar, Justice Khan, and Justice Mandokhail. It held three hearings on the matter.
However, on Wednesday, an SC bench headed by Justice Qazi Faez Isa ordered the postponement of cases being heard under Article 184(3) of the Constitution till the amendments made in the Supreme Court Rules 1980 regarding the discretionary powers of the chief justice to form benches.
Justice Khan concurred with Justice Isa while Justice Shahid Waheed dissented with the majority order of 2-1 in the suo motu case regarding the grant of 20 marks to Hafiz-e-Quran students while seeking admission to MBBS/BDS Degree under Regulation 9(9) of the MBBS and BDS (Admissions, House Job and Internship) Regulations, 2018.
Consequently, on Thursday the bench hearing the election case was dissolved following Justice Khan's recusal in line with Justice Isa's order.
After the dissolution of the bench, the apex court announced that the bench would continue hearing the case without Justice Khan.
Disregarding of judgment
But before the election case hearing was set to resume, the Supreme Court “disregarded” the judgment authored by Justice Isa through a circular issued by SC Registrar Ishrat Ali.
“The observations made in paras 11 to 22 and 26 to 28 of the majority judgment of two to one travel beyond the lis before the Court and invokes its suo motu jurisdiction,” observed CJP Umar Ata Bandial in the circular issued today.
It noted that the “unilateral assumption of judicial power” in such a manner violated the rule laid down by a five-member judgment.
“Such power is to be invoked by the Chief Justice on the recommendation of an Honourable Judge or a learned Bench of the Court on the basis of criteria laid down in Article 184(3) of the Constitution. The said majority judgment therefore disregards binding law laid down by a larger bench of the Court,” read the circular.
When the bench assembled today, Attorney General for Pakistan Mansoor Usman Awan came on the rostrum to speak but CJP Bandial told him that Justice Mandokhail wanted to say something.
The judge, while recusing himself from hearing the case, remarked that he was awaiting the order after Justice Khan’s recusal from the case.
Three-member bench resumes hearing of Punjab, KP election delay case
“I received the order at home. I had written a separate note on the order,” said Justice Mandokhail. He then asked AGP Awan to read out his note.
After the AGP read out the note written in the order, Justice Mandokhail remarked that he was a member of the bench but he was not consulted while the order was being written.
“I believe I am a misfit in the bench. I pray whichever bench is formed in this case gives a verdict that is acceptable to everyone,” said Justice Mandokhail. He prayed for his institution, adding that he and his fellow judges were bound to follow the Constitution.
“I wanted to say something yesterday as well, perhaps there was no need for advice from me while writing the judgment,” noted Justice Mandokhail. He added that the other three members of the bench did not find him “worthy” of giving advice.
After this, Justice Mandokhail tried speaking but was stopped by the CJP. He instead thanked the judge for his note.
“Whatever decision is made on the formation of the bench will be announced in the court in a while,” remarked CJP Bandial.
Later, the court announced that a three-member bench will resume the hearing at 2pm.
PBC seeks full court
After the hearing resumed, Pakistan Bar Council Executive Committee Chairman Hassan Raza Pasha came to the rostrum to speak up and urged the court to form a full bench on the case.
However, CJP Bandial said that they will hear the bar later.
But Pasha stated that the bar was not is support or against anyone. He added that if a full court bench could not be made then a full court conference should be summoned.
“We are thinking about this,” said CJP. He added that the relations between the judges were fine.
The top judge also stated that the media at times would also say things which were not true.
“I will hold some meetings after the hearing. It is expected that Monday's sun will rise with good news,” remarked the CJP.