Begum AFSAR SULTAN QAZALBASH Versus Mian NISAR ILAHI

ORDER

We propose to dispose of two Review Applications Nos.70 and 71 of 2005 arising out of consolidated judgment dated 13-7-2005 passed in Writ Petition No.2178 of 2005 whereby two connected petitions bearing Writ Petition No.2178 of 2005 (Begum Afsar Sultan Qazalbash and 4 others v. Mian Nisar Elahi and 2 others) and Writ petition No.2179 of 2005 (Riza Ali Khan Qazalbash and 3 others v. Mian Nisar Elahi and 2 others) had been allowed and F.I.Rs. Nos.97 and 96 of 2005 (impugned therein), got registered by the applicant, namely, Mian Nisar Elahi, with- Police Station Sotto Katla, District Lahore for offences under sections.419, 420, 467, 468, 471, P.P.C. allegedly committed by Begum Afsar Sultan Qazalbash and- others were ordered to be quashed.

2. Concisely, case of Mian Nisar Elahi (complainant/applicant) as it unfurled in F.I.R. No.97 of 2005 (impugned in Writ Petition No.2178 of 2005), was that on 28-2-2000, Begum Afsar Sultan Qazalbash and Fateh Ali Khan had executed an agreement in his favour for sale of their landed property measuring 153 Kanals, 19 Marlas, situate in the revenue estate of Mauza Rakh Khamba, Tehsil and District Lahore, at the rate of Rs.4,00,000 per Kanal (total amount of consideration being Rs.6,15,80,000) out of which an amount of Rs. 1,00,00,000 .had been paid by him that possession of the land was handed over to him and he .had erected boundary wall around the same; that out of the land subject-matter of agreement to sell, Begum Afsar sultan Qazalbash had already . gifted land measuring 55 Kanals, 18 Marlas in favour of one of her relations, which fact was concealed by her from the complainant at the time of execution of sale-deed; that when he came to know of the gift, he lodged protest with Begum Afsar Sultan Qazalbash, whereupon she promised to get the sale-deed of the gifted land executed in his favour from Anwar Qazalbash, the donee; that thereafter two separate agreements, both dated 1-1-2004, one pertaining to sale of 89 Kanals, 3 Marlas (for consideration of Rs.3,56,60,000) by Begum Afsar Sultan Qazalbash, and the other by Anwar Qazalbash for sale of land measuring 55 Kanals, l8 Marlas (for consideration of Rs.2,23;60,000) were executed in his favour, wherein it was undertaken that the amount of Rs. 1,00,00,000 already paid shall be adjusted towards the total amount of consideration; that another amount of Rs.5,00,000 was also paid by him; that when Begum Afsar Sultan Qazalbash and Anwar Qazalbash became evanescent and resorted to prevarication, he doubted their intentions and upon inquiries came to know that they had executed sale-deeds in favour of other persons, which too had been suppressed-from him though on his protest they promised to get the said sale-deeds cancelled through Court of law, and to complete the transactions in his favour; that Begum Afsar Sultan Qazalbash, Anwar Qazalbash and Riza Ali Khan Qazalbash had executed a general power of attorney in favour of Hammad Arshad, and the latter had executed sale-deeds of the land in favour of Eden Developers, for development of a fake housing scheme, without receiving the price of the land, and that the intention behind the entire plan was to usurp the earnest money paid by him and also to deprive him of the land subject matter of the agreements to sell executed in his favour.

Precisely case of Mian Nisar Elahi, applicant, as it unfolded in F.I.R. No.96 of 2005 (impugned in writ Petition No.2179 of 2005) was that on 1-1-2004, Nawabzada Riza Ali Khan Qazalbash had executed an agreement in his favour through registered deed for sale of his land measuring 203 Kanals, 5 Marlas, situated in Mauza Rakh Khamba at the rate of Rs.4,00,000 per Knaal, for a total consideration of Rs.8,13,00,000 and after receiving an amount of Rs. 1,00,00,000 as earnest money had delivered possession of the land to the applicant; that the latter having completed boundary wall at the site was continuing in possession; that although Nawabzada Riza Ali Khan Qazalbash had received the earnest money, yet the applicant had to file a suit for specific performance of the agreement dated 1-1-2004 and during pendency thereof it had come to light that Nawabzada Riza Ali Khan Qazalbash in connivance with Hammad Arshad and also the Chief Executive and other directors of Eden Developers had illegally and fraudulently fabricated forged documents with a view to usurping- the land and earnest money paid by the applicant; that in order to accomplish their designs, a forged and fake power of attorney had been got executed in favour of Hammad Arshad; that in this. way, Nawabzada Riza Ali Khan Qazalbash having connived with Hammad Arshad and others had got prepared a fake and forged sale-deed in favour of Eden Developers and had got the same registered with a view to accomplishing a fake Housing Scheme; that with dishonest intention and in order to defraud, the general public, advertisements are being published about the aforesaid land, and with a view to usurping the earnest money paid by the applicant, attempt was being made to accomplish a Housing Scheme in a fake and fictitious name; that the sale-deed by Nawabzada Riza Ali Khan Qazalbash in favour of Eden Developers is forged, fictitious, without any foundation, conceived out of fraud and was also without consideration; that the intention of the accused right from the very beginning was dishonest, deceitful and based on fraud; that Nawabzada Riza Ali Khan Qazalbash and others have committed forgery and fraud and are liable to be proceeded against.

3. On finding out about the registration of the cases, two writ petitions bearing W.P. No.2178 of 2005 had been filed by Begum Afsar Sultan Qazalbash, Anwar Qazalbash, Mazahir Baig, Hammad Arshad and Muhammad Arshad, for quashing of F.I.R. No.97 of 2005 and another bearing Writ Petition No.2179 of 2005 was filed by Riza Ali Khan Qazalbash, Mazahir Baig, Hammad Arshad and Muhammad Arshad for quashing of F.I.R. No.96 of 2005. Both the constitutional petitions were heard by a learned single Judge in Chambers and by order dated 13th of July, 2005, the same were allowed, consequently both the F.I.Rs. had been quashed, by inter alia holding that so far as the execution of general power of attorney in favour of Hammad Arshad was concerned, since the executants thereof were owning up to the same as a genuine document, no offence could be said to have been committed. Further no offence of cheating was also held to have been made out on the facts alleged in the F.I.R. read with the documents, authenticity whereof had not been challenged. Since the original owners of the land were supporting the validity of the sale-deeds and admitted having received the amount; of consideration, the learned single Judge in Chambers had held that the sale-deeds executed by Hammad Arshad in favour of Eden Developers could not be said to be forged documents and that, therefore, no offence of fabrication or forgery was held to have been committed. It was emphasized that if Begum Afsar Sultan Qazalbash and other owners of the land, had any criminal intent, they would not have parted with the possession of the entire land in favour of the complainant, only on receiving the earnest amount of Rs.1,00,00,000. Reference was made to the terms of the subsequent agreements and the foot that the complainant had already approached the Civil Court of competent jurisdiction seeking specific performance; of the agreements to sell, which proceedings were being contested tooth and nail by Begum Afsar Sultan Qazalbash and others. Above all, in the view of the learned single Judge in Chambers, it was essentially a dispute of civil nature between the parties.

4. We lave hoard Mr. A.K. Dogar, the Darned counsel for the applicant. With his assistance, we have also examined the impugned judgment. Review of the judgment dated 13th of July, 2005 has been sought on the grounds that the presumptions drawn by the learned Single Judge could not be raised; that the intention behind the agreement, dated the 28th of February, 2000 which was followed by the agreements, dated the 1st January, 2004 being a question of fact was beyond the scope of writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973; that the conduct of the writ petitioners lead not been ascertained adequately; that no opinion has been expressed regarding relevancy or otherwise of certain documents filed on behalf of the applicant herein; that the veracity of the. allegations contained in the F.I.R, and whether on the facts alleged therein any offence was made out or not could not be the proper subject of a constitutional petition; that the facts have not been appreciated in their true perspective; that certain documents have either not been referred to in the order, or have been misintexpreted and the case-law has been misapplied to the facts of the case; that some of the observations made in the order of the learned single Judge in Chambers were not warranted either on facts or in law; and that this Court, in review jurisdiction, should draw certain inferences from the allegations contained in the F.LR.; that this Court should not hold that certain alienations pertaining to the property subject-matter of the agreements in favour of the applicant could not be lawfully made. In support of his argument that in view of the law declared recently. by the Honourable Supreme Court of Pakistan, the learned Single Judge in Chambers in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, was not, at all, competent to quash the two F.I.Rs., reliance has been placed on Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276, because, in his submission, by doing so the ordinary course of trial of the case before the Court stands deflected, and that in the instant case the learned Judge had even otherwise erred in law in appreciating the documents produced by the writ petitioners, whereas those filed on behalf of the complainant had been ignored. The facts of the precedent case, cited by the learned counsel, were quite distinguishable from those of the instant case. Besides, a careful examination of the decision, relied upon makes a different reading inasmuch as their Lordships of the Supreme Court of Pakistan have not laid down: that in no circumstance can a F.I.R, be quashed by the High Court in the exercise of its constitutional jurisdiction. In this context, reference may advantageously be made to the following observation recorded in paragraph 16 of the judgment :--

"It is a settled proposition of law that when there are extraordinary circumstances, High Court is duty bound to .protect life, liberty, honour and dignity of every citizen, it must, therefore, take extraordinary measures specially when the statute law is not sufficient to meet a situation and. provide protection to the citizens. It is here that the extraordinary jurisdiction under Article 199 of the Constitution must come to the aid of citizens. "

The submission of the learned counsel that even though the judgment sought to be reviewed was delivered on 13th of July, 2005, whereas the Honourable Supreme Court of Pakistan gave the afore-referred decision on 15th of December, 2005, which was reported in 2006, still this Bench seized as it is of the review petition, can set aside the impugned order, has also not impressed us. We have already shown that the' Honourable apex Court has not laid down an unyielding prohibition of universal application, and it depends on the facts and circumstances of each particular case whether or not the limitations postulated and alternate remedies outlined in the .afore-referred to decision of the Honourable Supreme Court would stand in the way of the High Court to exercise its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for quashing an F.I.R. Reliance by the learned counsel on Abdul Ghaffar-Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 383 is also ill-suited because in paragraph 18 of the said judgment, the factual and legal errors in the judgment under review were clearly brought out to be manifest and floating on the surface of the' earlier decision itself. Similarly, the decision of the Honourable apex Court, lastly relied upon by the learned counsel and reported as Faqir Muhammad Khan v. Mir Akbar Shah PLD 1973 SC 110, is of do help to the applicant. In the said case a learned Single Judge of the West Pakistan High Court, Peshawar Bench, on the facts of that case, had held that clause (c) of section 5 of the North-West Frontier Province Pre-emption Act was attracted to the case. Review of the judgment was sought on the ground that, while delivering the judgment, a full Bench decision of the same High Court, to the contrary, had escaped notice of the learned Single Judge. The learned single Judge, after examining a number of decisions, came to the conclusion that the failure to notice even a judgment binding on him, but not till then reported, was not a sufficient ground for review under rule 1 of Order XLVII of the Code of Civil Procedure and the review petition was accordingly dismissed. Although their Lordships of the Supreme Court found, as a fact, that the Full Bench decision could not be said to bi not within the notice of the learned Judge, yet his decision was maintained by observing inter alia as follows:--

"Nevertheless we must also point out that the granting of a review is still in the discretion of the Court. It is not bound to grant a review even where adequate grounds exist but the discretion must, as in the case of all judicial discretions, be. exercised upon sound judicial principles."

Doubtless, one of the reasons for upholding the decision of the learned Judge was that in the afore-quoted precedent case, their Lordships had not approved the decision of the Full Bench. Be that as it may, it was held that granting of review was in the discretion of the Court. We would like to observe that the scope of review is very limited. The applicant seeking review must show that there is an error or mistake apparent on the face of-the record. Review is neither a substitute for a full-fledged appeal nor it is akin to rehearing of the whole matter. Even if the view taken by the Court is erroneous, it does not warrant review of the decision which can only be exercised when an error or mistake is manifestly shown to float on the face of record, which is so patent that if allowed to remain intact, would perpetuate illegality and gross injustice. Besides a patent error or mistake, the applicant for review has to show discovery of new and important matter of evidence, which after exercise of due diligence was not within his knowledge, or could not be produced at the time when the order was made. The learned counsel for the applicant has not been able to show that there is any error or mistake apparent on the face of the record. Each bit of the documents referred to by the 'learned counsel for the parties had been discussed and rightly appreciated by the learned Single Judge in Chambers. Moreover, the case-law relied upon by the parties in support of their respective contentions was exhaustively considered, analyzed and dealt with by the learned Single Judge in chambers. Categorical findings recorded after careful and conscious appreciation of all the pros and cons of the matter cannot be re-opened with a view to reappraising the same and for taking a contrary view, which otherwise did not suffer from misconstruction or misappreciation of documents and the law applicable to-the facts of the case. Review jurisdiction cannot be invoked as a routine matter or to re-hear a case which has already been decided. Needless to add that a conscious decision on a point of fact or law does not warrant review, rather the remedy of the aggrieved party lies elsewhere. The learned counsel has also failed to point out any material irregularity in the order constituting judicial fallibility. Having gone through the review petitions very minutely, we have not been able to find any fault with the order of the learned Single .Judge in Chambers so as to warrant- its review within the parameters laid down by the superior Courts for exercise of review jurisdiction.

5. For the foregoing reasons, we find no substance in both these review applications under consideration, which are hereby dismissed in limine.

H.B.T./A-147/L Review dismissed.