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P L D 2000 SC 77

MOHTARMA BENAZIR BHUTTO

V/S

PRESIDENT OF PAKISTAN AND 2 others

Per Irshad Hasan Khan, J.(a) Constitution of Pakistan(1973) Art. 188

We are afraid, remedy to seek review under Article. 188 of the Constitution read with O. XXVI, r.1, Supreme Court Rules, 1980 is sought only under exceptional circumstances falling within the purview of review and in aid of justice–Judgment under review in the present case was passed after hearing the counsel for the parties at length and examining their pleadings and the material available on record; Bench seized of the case had clearly granted the petitioner sufficient indulgence in the conduct of the proceedings to ensure that the petitioner obtained a fair hearing and no miscarriage of justice had occurred and judges constituting the Bench rendered the decision by majority of 6 to 1, holding that the material produced on behalf of the respondent was relevant and came to the conclusion that all the grounds mentioned in the order had nexus with the proceedings mentioned in relevant provision of the Constitution–Effect–Grounds urged for rehearing the matter in the grab of review petition, held, could not be allowed as supreme court would not sit as a court of appeal against the order/judgment under review–No mistake having crept in the judgment under review, there was, therefore, no justification for reviewing the same, in so far as the same related to the merits of the case.

In substance, the view taken by the majority Judges, in the judgment under review, was that the petition merited dismissal on the basis of the material produced before the Court on behalf of the President, which had nexus with the grounds mentioned in the impugned order of dissolution as well as grounds specified under Article 58(2)(b) of the Constitution.
[pp. 80, 83]A,D.
(b) Constitution of Pakistan(1973) Art. 188

“Supreme Court derives the power to review its decisions under Article 188 of the Constitution of Islamic Republic of Pakistan. To regulate the practice and procedure of Supreme Court and to govern the proceedings initiated before it, Supreme Court has framed the Rules known as Supreme Court Rules. 1980 in exercise of the power conferred by Article 191 of the Constitution, Rule 1 of Order XXVI regulates the review proceedings before Supreme Court.

The power of review available to Supreme Court under the above provisions in respect of matter arising on the civil side is analogous to the power of the Civil Courts under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908.

Where a conscious and deliberate decision has been made with regard to the nature of orders which it is empowered to pass under a provision of law only, because another view with regard there to is canvassed cannot and does not constitute a ground for review.

A review can lie on the ground of an error only if it is material to the conclusion reached in the judgment sought to be reviewed.

The exercise of review jurisdiction does not mean a rehearing of the matter and as finality attaches to the orders, a decision, even though it is erroneous per se, would not be a ground to justify is review. Accordingly, in keeping with the limits of the review jurisdiction, it is futile to reconsider the submissions which coverage on the merits of the decision.

Before an error can be a ground for review it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self-evident and floating on he surface and does not require any elaborate discussion or process of ratiocination.

Review of the order of Supreme Court on the ground that after the passing of the orders by Supreme Court there has been improvement in the status of the petitioner is not valid ground for review.

A review petition would not lie on the grounds which were already advanced at the hearing of appeal or petition or were attended to by the Court.

Review petition cannot be allowed to be pressed on the basis of material available and not produced earlier but produced for the first time in review.

Contention not raised at the hearing of petition for leave to appeal or appeal cannot be allowed to be raised in review proceedings.

The ground of non-hearing of appellant in respect of order passed in suo motu jurisdiction by a lower forum can be a ground of error apparent on the face of the order.

Assumption of Court that the petitioner was successor-in-interest of the transferee while in fact it was not so, can be considered as an error apparent on the face of the order.

Review proceedings cannot partake re-hearing of a decided case. Therefore, if the Court has taken a conscious and deliberate decision on a point of law or order cannot be obtained on the grounds that the Court took an erroneous view or that another view on reconsideration is possible. Review also cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced. A ground not urged or raised at the hearing of petition or appeal cannot be allowed to be raised in review proceedings. Only such errors in the judgment/order would justify review, which are self-evident, and have a material bearing on the final result of the case. [pp. 80, 81, 82]B & C

The precise submission of the learned counsel for Mohtarma Benazir Bhutto and Senator Asif Ali Zardari, is that the question raised in the petitions for review are in the nature of rehearing of the petitions for leave to appeal, which could not be granted on grounds urged by the learned Attorney-General

The fact of above review petitions depends on the scope and applicability of Order XXVI, Rule 1, the Supreme Court Rules, 1980(hereinafter referred to as the Rules). Under Rule 1 above, the power of review is to be exercised in a criminal proceedings on the ground of an ‘error apparent on the face of the record’ and in civil proceedings on ground similar to those mentioned in Order XLVII, Rule1 of the C.P.C. Under the latter provision, the power of review can also be exercised if there is a mistake or ‘error apparent on the face of the record’, apart from other grounds mentioned in Order XLVII, Rule 1 of the C.P.C.

The question which needs examination is as to what is the scope of the phrase ‘a mistake/error on the face of the record’, and what is the scope and nature of the proceedings intended for the discovery and correction of such and error.

The phrase ‘error apparent on the face of the record’ and the scope and nature of the review proceedings are well-settled. Clearly, the error contemplated under Order XXVI of the Rules, is an error so manifest, so clear, that no Court can permit such an error to remain on record. Such an error is not forthcoming on the record in the instant case. The State cannot, therefore, be permitted to re-argue the petitions for leave to appeal in the garb of review petition in the absence of any error apparent on the face of the record, which is lacking here. To permit a review on the ground of incorrectness would amount to granting the Apex Court the jurisdiction to hear appeal against its own judgment. Such a course is neither contemplated under the Constitution nor the Rules.”
[p. 82, 83]C

(c) Constitution of Pakistan(1973) Art. 184 & 58(2)(b)

In order to remove any doubt, we hereby clarify that the observation made in the impugned short order/judgment referred to above, are restricted, in their application, to the proceedings under Article 184 of the Constitution for the purposes of Article 58(2)(b) alone and are not to be treated as proof of the charges for any other purpose.[p. 84]E

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