MUSHTAQ AHMAD Versus FEDERATION OF PAKISTAN
This matter arises from a review petition filed against the dismissal of a petition for special leave to appeal. The core legal questions concern the mandatory procedural requirements for filing a review petition under the Supreme Court Rules and the effect of subsequent legislation on pending matters. The Supreme Court dismissed the review petition, holding that it was not filed in accordance with Orders III and V of the Supreme Court Rules, as the petition was neither signed by a Senior Advocate nor drawn and presented by the advocate who appeared at the original hearing without the requisite leave or consultation. Furthermore, the contention that the leave petition had abated under section 6 of Ordinance XV of 1973 was rejected, as the petition had already been dismissed on merits, and any alternative remedy before a Service Tribunal, if available and within time, could be pursued independently. The key principle laid down is that procedural rules governing the filing and presentation of review petitions must be strictly complied with, and the dismissal of a leave petition renders arguments regarding subsequent abatement academic.
- Whether a review petition can be entertained if it fails to comply with the procedural requirements regarding signing and drafting by advocates under the Supreme Court Rules?
- Does the abatement of a petition for leave to appeal under section 6 of Ordinance XV of 1973 provide a ground for reviewing a previously dismissed leave petition?
- Section 6, Ordinance XV of 1973
ORDER
1. SALAHUDDIN AHMED, J.‑ ‑‑This review petition dose not appear to have been tiled in accordance with the Rule; of this Court Rules, 3 and 5 of Order XXVI of the Supreme Court Rule‑: prescribe that no application for review shall be entertained unless it is signed by a Senior Advocate; and except with the special leave of the Court no application for review shall be drawn by any Advocate other than the Advocate who appeared at the hearing of the case in which the judgment or order, sought to be reviewed, was made, and that such Advocate shall, unless his presence has been dispensed with by the Court, be present at the hearing of the application for review.
2. At the hearing of the petition for special leave. Mr. Muhammad Arif, Advocate instructed by Mr. Ejaz Ahmed Khan, Advocate-on-Record, appeared on behalf of the petitioners. None of these Advocate has drawn up his petition and none of them is present on court. It does not appear from the certificate of the senior Advocate, Ch Fazal Din who never appeared at he hearing of the petition for leave to appeal that he had settled the petition for review in consultation with any Junior Advocate. Clause (2) of the First schedule to the supreme court Rules states as follows:---
3. A senior Advocate shall not accept instruction to draw pleadings, affidavits advice on evidence or to do any drafting work of an analogous kind but this prohibition shall not extend to setting any such matters as aforesaid in consultation with a Junior.
4. There is an order by Mr. Justice Waheeduddin Ahmed, J. whereby the petition is merely permitted to appears in person. Do not think that this order can be construed as doing away with the requirement of rules of Order XXVI of the Rules of this court.
5. There is also no substance in the petition. It has been contended before us that in view of the provision of section 6 of Ordinance XV of 1973 which wax promulgated on the 15 th of August 1973 the application for leave to appeal pending before this court before the commencement of the Ordinance has abated. The petition for special leave to appeal had been filed on the 10 th of May 1973 and was dismissed on the 10 th of October 1973, this point was not raised at the time of the hearing of the leave petition.
6. Assuming, however, that the petition for leave had abated, it dose not, in any way, help the petitioner in his present petition. His petition for leave was dismissed. If any relief by way of appeal to the competent Service Tribunal is still available and not barred by time the petitioner is at liberty to pursue it. This is, however, no ground for allowing the review petition.
7. The petition is, accordingly, dismissed.
8. Petition dismissed.