MUHAMMAD ARSHAD SAEED Versus PAKISTAN
This matter arises from a review petition filed before the Supreme Court of Pakistan, which was reported to be barred by 348 days. The core legal question concerned whether the requirement of furnishing a cash security of Rs.2,000 for filing a review petition under Order XXVI Rule 7 of the Supreme Court Rules applies to service matters, or whether it is overridden by the special provisions of Order XXIV relating to service appeals. The Supreme Court held that the review petition was indeed subject to the cash security requirement under Order XXVI Rule 7, as review petitions fall under Article 188 of the Constitution rather than Article 212(3) which governs service appeals, rendering the maxim generalia specialibus non-derogant inapplicable. Consequently, finding no sufficient ground for condoning the substantial delay in depositing the required security, the court dismissed the review petition as time-barred. The key principle laid down is that review petitions in service matters are governed by the general security requirements for reviews under the Supreme Court Rules and are not exempt by virtue of special provisions applicable to petitions for leave to appeal.
- Whether a cash security of Rs.2,000 is required for filing a review petition in service matters under the Supreme Court Rules?
- Does Order XXIV of the Supreme Court Rules override the requirement of cash security for review petitions under Order XXVI Rule 7?
- Are review petitions under Article 188 of the Constitution subject to different procedural requirements than petitions for leave to appeal under Article 212(3)?
- Rule 7, Order XXVI, Supreme Court Rules
- Order XXIV, Supreme Court Rules
- Article 212(3), Constitution of Pakistan 1973
- Article 188, Constitution of Pakistan 1973
ORDER
1. NASIM HASAN SHAH, J.‑‑According to the report of the office this review petition is barred by 348 days.
2. The review petition was filed on 16‑6‑1986 but was returned by the office to the Advocate‑on‑Record on the ground that it was not accompanied by the necessary cash security of Rs.2,000 without which the review petition could not be entertained. A week's time was granted to the petitioner to make up the deficiency. However, the Advocate‑on‑Record of the petitioner instead of complying with this direction filed an appeal against it asserting that no security was leviable in service matters and that the matter should be placed for consideration before a Judge in Chamber for decision.
3. This question, however, came up for consideration before a meeting of the Full Court on 2‑7‑1986 which did not agree with the point of view of the petitioner. The Court was of the opinion that merely because no security for costs was required in connection with the petitions for leave to appeal from judgments of the Service Tribunal under Order XXIV (of the Supreme Court Rules) did not imply that Rule 7 of Order XXV I that "no application for review shall be entertained unless the party seeking review furnishes a cash security of Rs.2,000 which shall be liable to be forfeited or paid to the opposite party if the review petition is contested and is dismissed" would not apply in such matters. Accordingly, all the Advocates‑on- Record were informed that furnishing of security of Rs.2,000, even in service matters, in cases of review petitions was necessary. However, despite this intimation, no action was taken by the learned Advocate‑on‑Record of the petitioner to deposit the security of Rs.2,000 within a reasonable time. In fact, the deposit was ultimately made on 9‑8‑1987.
4. Mr. Bashir Ahmad Ansari, learned counsel for the petitioner, in support of the application for condonation of delay has submitted that Order XXVI, Rule 7 providing for cash security in review matters is a general provision and does not override the special provision of Order XXIV which relates to payment of court‑fee, process fee and security in service matters. But we observe that Order XXIV deals only with the petitions for leave to appeal under Article 212(3) of the Constitution; whereas this review petition has been submitted under Article 188 of the Constitution for exercise of its Review F Jurisdiction. .The scope and subject‑matter of the matters dealt with under Article 212(3) and those covered by Article 188 being quite different and there being no similarity in the two situations, the rule generalia specialibus non‑derogant (the general excludes the special) is not at all attracted here.
5. We, therefore, find no good ground for condoning the delay in the circumstances of this case. The petition is, accordingly, dismissed as barred by time.
6. M. B.A./M‑393/S Petition dismissed‑