ALI AHMAD vs MUHAMMAD IQBAL

ORDER

' MUHAMMAD FARRUKH MAHMUD, J.--- This petition seeks review of the judgment of this Court, dated 31-5-2001 whereby Civil Appeal No,1455 of 1995 filed by Ali Ahmad petitioner was dismissed.

2. The petitioner filed a suit for possession through pre-emption of suit-land on the basis of his superior right. The transaction on the basis of it, was through exchange mutations while the case of the petitioner was that the mutations were collusive and shams so as to defeat the right of pre- emption of the petitioner.

3. Keeping in view averments of the parties core issue was framed by the learned trial Court to the effect "whether the impugned transaction is sale and not exchange? OPD". The learned trial Court and the Appellate Court concurred that the transaction was that of exchange while the learned High Court affirmed it.

4. After detailed scrutiny of the evidence on the record and appreciation of law cited at bar, this Court upheld the judgments passed by the learned Courts below.

5. The learned counsel for the petitioner has reiterated his arguments that the transaction of the suit-land amounted to sale and not through exchange and that the mutations relating to exchange of the suit-land were sham and were meant only to defeat the right of pre-emption of the petitioner. The learned counsel while relying on the case of Pakistan through Ministry of Finance Economic Affairs and another v. Fecto Belarus Tractors Limited PLD 2002 SC 208 submitted that the power of review could be exercised where the Court had overlooked some material question of fact and law which would have a bearing on the decision of the case. The learned counsel also referred to the case of Mst. Miraj Bibi v. Mst. Azim Khatoon and others 1997 SCM R 1892 wherein it was.

Observed that when a transaction was sought to be declared as of sale which has been purportedly described to be otherwise than sale, the Courts were required to attend to the real nature of the transaction".

6. We have heard the learned counsel for the petitioner at some length and have also gone through the relevant record of the case. It has been noticed by us that the points raised by the learned counsel today have already been discussed and dealt with by this Court in the impugned judgment. As already noted above, the finding of learned Courts below that the transaction of suit- land was through exchange mutations, was upheld by this Court. It was observed by this Court in the case of Lt.-Col. Nawabzada Muhammad Amir Khan v. The Collector of Estate Duty Government of Pakistan, Karachi PLD 1962 SC 335 as follows:--- "This Court is competent, no doubt, to reconsider a question of law previously decided in a subsequent case but this Court has no jurisdiction to sit on appeal over its own judgments."

7. It was further observed that "A review by its very nature was not an appeal or rehearing merely on the ground that one party or another conceived himself to be dissatisfied with the decision of the Court".

8. It would be advantageous to reproduce the observations of this Court recorded in the case of Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741:--- "It is also to be borne in mind that as finality attaches to the judgments delivered by this Court, which stands at the apex of the judicial hierarchy, a review proceeding is neither in the nature of rehearing of the whole case, nor is it an appeal against the judgment under review. It is accordingly not permissible to embark upon a reiteration of the same contentions as were advanced at the time of the hearing of the appeal, but were considered and repelled in the judgment under review, in an effort to discover errors said to be apparent on the face of the record."

9. The case-laws cited by the learned counsel does not help the petitioner as the case of Pakistan through Ministry of Finance Economic Affairs and another v. Fecto Belarus Tractors Limited (supra) deals with the scope of review while the circumstances of the case titled Mst. Miraj Bibi v. Mst. Azim Khatoon and others (supra) were different. We may add here that in the latter case titled Mst. Miraj Bibi v. Mst. Azim Khatoon and others (supra) it was held by this Court that in order to defend the right of pre-emption; genuine device was no doubt permissible.

10. The learned counsel has failed to point out any mistake or error apparent on the face of record.

In the above noted circumstances we find no force in this review petition which is dismissed.