MUJAHID HUSSAIN NAQVI Versus AZAD GOVERNMENT

ORDER

MUHAMMAD REAZ AKHTAR CHAUDHRY, C.J. ---This review petition is directed against the order of this Court dated 15-6-2001, whereby the then learned Chief Justice has declined to summon the record regarding delegation of powers of Government to the Law Minister.

2. The precise facts giving rise to the instant review petition are that an Appeal No.165 of 1999 was filed by Azad Government and others against the judgment of the High Court dated 15-10-1999. During the hearing of appeal, the petitioner moved two Applications; (i) application No.45 of 2001 for summoning the record regarding sanction for filing appeal against the petitioner and (ii) Application No.46 of 2001 for summoning record regarding delegation of power by the Government to the Law Minister.

3. The then learned Chief Justice after hearing the parties accepted Application No.45 of 2001 for summoning the file of sanction but rejected Application No.46 of 2001 pertaining to summoning of record, regarding delegation of powers to the Law Minister by the Government. The instant review petition has been filed against the aforesaid order of rejection of Application No.46 of 2001.

4. Mr. Mujahid Hussain Naqvi, the petitioner, contended that the then learned Chief Justice has committed an error while holding in para.10 of order as under:--

"In paragraph 2(c) of concise statement, the applicant has challenged the validity of sanction on the ground that the same was accorded by the Prime Minister despite the opposition of majority of Members of his Cabinet and thus it was not a Government sanction. "

He submitted that nothing like such was mentioned in paragraph 2(c) of his' concise statement. It has wrongly been recorded as such by the then learned Chief Justice in his judgment. It was next submitted by the petitioner that he never submitted or stated in his concise statement that the sanction was accorded by the Prime Minister. He further submitted that the record regarding sanction has been summoned by the then learned Chief Justice by accepting Application No.45 of 2001. This record clearly contains that the sanction was granted by the then Law Minister. Therefore, the petitioner wants that the file regarding delegation of powers to the Law Minister may also be summoned so that it may be ascertained, whether the powers were delegated to the Law Minister or not. While relying on the cases reported as Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741 and Lt. Col. Nawabzada Muhammad Ameer Khan v. The Controller of Estate Duty Government of Pakistan PLD 1962 SC 335 the petitioner submitted that the error is apparent on the face of record, therefore this order may be reviewed.

5. While replying the argument of the petitioner, Mr. Asghar Ali Malik, the learned counsel for the respondents, contended that the scope of review is very limited under the Supreme Court Rules. Any issue which has been resolved by the Court one way or the other cannot be reviewed even if the same has been resolved illegally. He referred a case reported as Muhammad Yousaf Sari v. Azad Government and 4 others 1996 SCR 370 in support of his contention. He further maintained that mere incorrectness of a decision on a particular issue or question falling for determination in a case can never be regarded as aground for review. The learned counsel also relied upon another case titled Allah Ditta and others v. Mehraban and others 1992 SCR 145 in support of his contention.

6. We have heard the petitioner as well as the learned counsel for the respondents, perused the record and have given our utmost muse to their respective contentions. Order XLVI, rule I of Supreme Court Rules contains that subject to the law and practice of the Court, the Court may review its judgment or order in a civil proceeding on the grounds similar to those mentioned in Order XLVII, rule 1 of C.P.C. and in a criminal proceeding on the ground of an error apparent on the face of record. Order XLVII, rule 1 of C.P.C. contains as under:--

(1) Any person considering himself aggrieved---

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,.

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record "

Under the aforesaid provision of law, where the court finds that any important matter or evidence despite the exercise of due diligence by an aggrieved person, was not within his knowledge or could not be raised by him at the time, when the decree or order was passed or there is some mistake or error apparent on the face of record then the review jurisdiction shall be invoked.

7. The main stress of the learned counsel for the respondents is that the scope of review is very limited. A review petition is not maintainable on those points which have been decided one way or the other. Moreover any dispute which has already been resolved cannot be reviewed even if the same has been resolved illegally. In a case reported as Muhammad Yousaf Sani v. Azad Government and 4 others 1996 SCR 370 it was held as under:--

"Any issue which stands already resolved cannot be made a subject of review even if the same had been resolved illegally....

In Allah Ditta and others v. Mehrban and others 1992 SCR 145 it has been held as under:--

"-------- Even otherwise the mere incorrectness of a decision on a particular issue or a question falling for determination in a case can never be a ground for review as to permit a review on the ground of such incorrectness would amount to granting the court a jurisdiction to hear appeal against its own judgment. The review of the judgment cannot be allowed merely on the ground that a party to it conceives himself to be dissatisfied with the decision made therein."

In Zafar Iqbal v. Allotment Committee of Municipal Committee Mirpur and others 1994 SCR 157 it has been held as under:--

"--------It may be pointed out at the very outset that we have repeatedly held that the findings of the Court given in an appeal after .considering the relevant material cannot he made basis for the review until and unless it is shown that there is mistake apparent on the ace of the record It is well-settled principle of law that even the wrong findings which have been given after considering the material on the record would not justify to resort to review jurisdiction unless findings are shown to be the result of non-consideration of material evidence."

In Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others 2003 YLR 410 it has been held as under:--

"--------It is settled proposition of law that the review cannot be allowed to reopen the case for the purpose of affording rehearing of the points already resolved. The Courts have gone to this extent that even if erroneous conclusion is drawn, the same cannot be regarded as mistake apparent on the face of record justifying the interference of the Court in exercise of its review jurisdiction. "

In Muhammad Ayub Khan and others v. Chairman Inspection Team and others PLD 1982 SC(AJ&K) 27 it has been held as under:--

" It would thus appear that a point already adjudicated and decided even on an erroneous view of the matter, cannot be regarded as a mistake apparent on the Pace of the record so as to invite interference in review jurisdiction."

8. Now the question emerges that where any issue or question has been wrongly resolved by the Court, then whether that should be reviewed or not? Although in many cases it has been held-by this Court that where a question has been resolved illegally or wrongly, that should not be reviewed. It perturbs our mind that if a question has been wrongly or illegally resolved then why that should not be reviewed. We are totally unable to agree with the view, given in plethora of aforesaid authorities, on the ground, that the basics object and purpose of enactment of laws, rules of procedures and establishment of various Courts is to administer justice. It is thus fundamental duty of all the Courts to administer justice and ensure that all the laws and rules of procedures are fulfilling very purpose for which these were enacted and if the Court finds that any law or rule of procedure does not fulfil its basic object rather it is enjoinder of injustice or it is a hindrance in the way of justice then that should be ignored. All the rules and laws are enacted for securing proper administration of justice. The rules are meant to advance justice and to preserve the rights of litigants. Rules are not enacted for entrapping the persons into blind corner so as to frustrate the purpose of law and the justice. In a case reported as Khuda Dad v. Ahmad Khan 1988 CLC 25 it has been held as under:--

"------- Institution of Courts exists for the sole purpose of administering justice to the parties, in causes, brought before them." Rules of procedure are enacted to assist the Courts in reaching correct and just decisions. Therefore, where necessary, they must be put in use to aid the sacred cause of justice. It is my considered view that unless unsurmountable, technicalities, if found to obstruct the cause of justice, must be avoided. "

In another case reported as Mir Mazar v. Azim PLD 1993 SC 332 it has been held as under;--

".... It has been ruled in recent years by the superior Courts of Pakistan that rules of procedure are meant to advance justice and to preserve rights of litigants and they are not meant to entrap them into blind corner so as to frustrate the purpose of law and justice .."

The aforesaid view further finds support from a case reported as Haji Muhammad Islam v. Muhammad Rafique and 2 others 1991 CLC 84.

9. It is pertinent to note that section 42-A(1) of the AJ&K Interim Constitution Act, 1974 confers certain powers on this Court for doing complete justice. The Supreme Court can issue such direction, order or decree as may be necessary for doing complete justice in any case or matter pending before it. For having proper perception we would like to reproduce section 42-A(1) of the AJ&K Interim Constitution Act, 1974 which is as under:--

"42-A. Issue and execution of process of Supreme Court .---(1) The Supreme Court shall have power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it including an order for the purpose of securing the attendance of any person or the discovery or production of any document."

10. The basic purpose of .this provision was to equip the Supreme Court with the powers for doing complete justice. Although "doing complete justice" is very comprehensive term but it means the doing of real and substantial justice without being fettered by legal formalities so that the paramount interests of justice are not allowed to be sacrificed at the altar of mere technicalities. This view finds support from a case reported as Ch. Zahur Ilahi v. The State PLD 1977 SC 273 wherein it has been observed at page 382 as under:--

"Doing complete- justice is indeed a very comprehensive term and in my humble opinion means doing real and substantial justice without being fettered by legal formalism, so that the paramount interests of justice are not allowed to be sacrificed at the altar of mere technicalities. It is to safeguard these interests that the. Constitution has conferred vast discretionary powers on the Supreme Court which is on the apex of the judicial hierarchy and the Court of last resort."

11. It is the duty of the Supreme Court to ensure that complete justice should be done in any case or matter. If while considering the review petition the Court comes to the conclusion that an issue has been resolved by it illegally and the Supreme. Court declines to interfere or review the order passed, it will amount to injustice. It will be violation of section 42-A(1) of the AJ&K Interim Constitution Act, 1974 the basic object of this provision is that complete ,justice should be done to every person. The aforesaid view of Supreme Court that if any question has been erroneously or illegally decided, the same could not be made a ground for review of order, amounts to negation of justice while vast powers have been given to this Court for doing complete justice. Therefore it is the moral and legal duty of this Court to ensure that complete justice is being done to everyone and no injustice should be done with any person merely on the basis of some technicalities.

12. It is also pertinent to note that it is the greatness of a person to realize about his mistake and to correct the same. If he feels that any illegality has been committed by him then he should rectify it. He should not make it an issue of prestige. No one should insist upon the .wrongdoings. If one feels that any question has been resolved by him illegally or he has not applied the law properly then we think it is his basic duty to correct the wrong because being a human being error can be committed by any person. Even the Holy Prophets and the- pious persons whenever found that some error was committed by them, they immediately sought forgiveness and refuge from God and reviewed their wrongdoings. In this respect we would like to cite Surah-Al-Ambia, Verses 77 and 78. The said verses pertain to a case which was submitted before Hazrat Daud regarding goats, which destroyed the field and the owner of field came for relief'. The owner of goats was also summoned. After hearing the statements of both, Hazrat Daud decided that the goats should be given to owner of field, so that his loss may be recovered because the loss of field was approximately equal to price of goats. At that time Hazrat Suleman was quite young. When he heard that decision, he stated that the matter should have been decided in a better way, that the goats should have been given for the time being. to the owner of field who should obtain the benefits of milk etc. from the goats and the field should be given to owner of goats who should supervise and develop the field., When the crops of field will reach- on the same position, as was at the time of destruction, then the land should be given back to owners of land and goats should be given back to owner of goats. After hearing this, Hazrat Daud immediately reviewed his decision. We would like to reproduce the aforesaid Verse and its interpretation by Pir Muhammad Karam Shah in Zia-ul-Qur'an Vol. 3, pages 177 and 178 which is as under:--

The same Verse was interpreted by Hafiz Emad-ud-Din Abul Fida Ibn-e-Kaseer in Tafseer Ibne-e-Kaseer, Vol. 3, page 414 in the Following way:--

Another decision is also quoted at page 415 of Tafseer Ibn-e-Kaseer, in the interpretation of aforesaid Verse where the decision was also reviewed by Hazrat Daud on the suggestion of Hazrat Suleman. The relevant portion is as under:--

According to interpretation of aforesaid Verse of Holy Qur'an Hazrat Daud decided the two cases. When Hazart Suleman suggested that instead of such decision, the decision should have been in another way, then Hazrat Daud agreed with Hazrat Suleman and reviewed both the decisions. Therefore it can safely be said that whenever one feels that some legal point or some decision has been wrongly or illegally pronounced by hits, he should review the same.

13. In the instant case, as stated above, the then learned Chief Justice has dismissed the application on the ground that the petitioner has stated in para.2(c) of the concise statement that the sanction was accorded by the Prime Minister despite the opposition of majority of members of his Cabinet while para.2 of concise statement in fact does not contain as such. Therefore the error was committed by this Court in the order under review which is apparent on the face of record.

14. The nub of the above discussion is that this review petition is accepted and the order dated 15-6-2001 is hereby set at caught to the extent of Civil Miscellaneous Petition No.46 of 2001 and it is ordered that the file regarding delegation of powers of government to the Law Minister shall be summoned.

S.A.K./13/SC(AJ&K) Review accepted.