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sajidnuml · #2 Thursday, February 03, 2011

Benzeer vs President. this is the case law may be helpfull

P L D 2000 Supreme Court 77
Present: Saiduzzaman Siddiqui, CJ,

Irshad Hasan Khan, Raja Afrasiab Khan,

Muhammad Bashir Jehangiri, Nasir Aslam Zahid,

Munawar Ahmed Mirza and Ch. Muhammad Arif, JJ

Mohtarma BENAZIR BHUTTO ‑‑‑Petitioner

versus

PRESIDENT OF PAKISTAN and 2 others ‑‑‑Respondents

Review Petition No.6 of 1998 in Constitutional Petition No.59 of 1996, decided on 11th October, 1999.

(On review of the order dated 29‑1‑1997 and judgment dated 13‑9‑1997 passed by this Court in Constitutional Petition No.59 of 1996).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑Art. 188‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Review‑‑‑Review of judgment or order of the Supreme Court conditions‑‑‑Principle‑‑‑Remedy to seek review under Art. 1.88 of the Constitution read with O.XXVI, R.1, Supreme Court Rules, 1980 is sought only under exceptional circumstances falling within the purview of review and in aid of justice‑‑‑Judgment under review in the present case was passed after hearing the counsel for the parties at length and examining their pleadings and the material available on record; Bench seized of the case had clearly granted the petitioner sufficient indulgence in the conduct of the proceedings to ensure that the petitioner obtained a fair hearing and no miscarriage of justice had occurred and Judges constituting the Bench rendered the decision by majority of 6 to 1, holding that the material produced on behalf of the respondent was relevant and came to the conclusion that all the grounds mentioned in the. order had nexus with the proceedings mentioned in relevant provision of the Constitution‑‑‑Effect‑‑‑Grounds urged for rehearing the matter in the garb of review petition, held, could not be allowed as Supreme Court would not sit as a Court of appeal against the order/judgment under review‑‑‑No mistake having crept in the judgment under review, there was, therefore, no justification for reviewing the same, in so far as the same related to the merits of the case.

Malik Asad"Ali v. Federation of Pakistan PLD 1998 SC 161 and AI* Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑Art. 188‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Review of judgment or order of the Supreme Court‑‑‑Scope.

Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and others PLD 1997 SC 865 and Mohtarma Benazir Bhutto v. The State PLD 1999 SC 937 ref.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑Arts. 184 & 58(2)(b)‑‑‑Constitutional petition before Supreme Court under An. 184(3), Constitution of Pakistan challenging the validity of the order of the President of Pakistan under Art.58(2)(b) of the Constitution‑‑‑Observations 'of Supreme Court made in the order/judgment were restricted, in their application, to the proceedings under Art. 184 of the Constitution for the purposes of Art.58(2)(b) of the Constitution alone' and were not to be treated as proof of the charges 'for any other purpose.

Khalid Malik and others v. Federation of Pakistan and others PLD 1991 Kar. 1 ref.

Aitzaz Ahsan, Advocate Supreme Court instructed by Mehr Khan Malik, Advocate‑on‑Record for Petitioner.

Ch. Muhammad Farooq, Attorney‑General for Pakistan and Sher Zaman, Deputy Attorney‑General with Ch` Akhtar Ali, Advocate‑on‑Record for Respondents.

Date of hearing: 11th October, 1999.

JUDGMENT

IRSHAD HASAN KHAN, J.‑‑‑This review petition under Article 188 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) read with Order XXVI, Rule I of the Supreme Court Rules, 1980 (hereinafter called the Rules), is directed against the short order dated 29‑1‑1997 and judgment dated 13‑9‑1997 of this Court, whereby the Constitutional Petition No.59 of 1996, filed by the petitioner, seeking to challenge the validity of the order passed by the then President of Pakistan Mr. Farooq Ahmed Khan Leghari, dissolving the National Assembly and all four Provincial Assemblies, under Article 58('2)(b) of the Constitution, was dismissed.

2. Petitioner seeks review of the above Short Order and Judgment on various grounds:

First, that the seven‑member Bench of this Court which delivered the judgment was improperly presided over and constituted by the then Hon'ble Chief Justice, Mr. Justice Sajjad Ali Shah, in that, it was held by this Court in Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161, vide Short Order dated 23‑12‑1997 that in the light of the decision in the case of Al‑Jehad Trust v. Federation of Pakistan PLD 1996 SC 324, the appointment of Mr. Justice Sajjad Ali Shah`, as Chief Justice of this Court, was improper and violative of the principle of seniority. The precise submission is that he was 'not de jure Chief Justice of Pakistan, therefore, all decisions rendered by him, were incompetent.

The contention is not sustainable because this Court in the case of Malik Asad. Ali (supra), held:‑‑

" .. . . We further hold that all actions taken and orders passed by respondent No.2 in his capacity of Chief Justice of Pakistan, up to 25‑11‑1997 will be deemed to have been validly taken and passed and will not be open to any challenge on the ground of defect in the appointment of respondent'No.2 as Chief Justice of Pakistan. However, all actions taken or orders passed by respondent No.2 as Chief Justice of Pakistan on and after 26‑11‑1997 are declared of no legal effect."

Secondly, this Court misinterpreted the scope of Article 58(2)(b) as mandated by the binding decision in the Nawaz Sharif Case and other binding precedents; thirdly this Court erroneously and by misinterpreting binding precedent decided that the President could permissibly rely upon newspaper clippings and other material not meeting the standards provided by the laws of evidence; fourthly, this Court erroneously allowed the‑ President to justify his charges on the basis of material gathered after the dissolution order was passed and has erroneously placed the onus of proof upon the petitioner; fifthly, this Court erroneously concluded that there was sufficient material having nexus with the charges stated by the President misappreciating and misreading the material produced by the respondents, and misapplying and misinterpreting the law relevant to the allegations; sixthly, this Court misappreciated and misread the material related to charge of extra judicial killings; seventhly, this Court misread and misappreciated the material and misapplied and misinterpreted the law relating to separation of the Executive from the Judiciary; eighthly, this Court misread and misappreciated the material and the law relating to the alleged wire*tapping; ninthly, this Court misread and misappreciated the material and misinterpreted and misapplied the law relating to the allegations of corruption; and lastly, this Court misread the pleadings of the parties and misappreciated the arguments advanced by the petitioner as also giving unfair and unequal treatment to the pleadings of the parties.

3. We are afraid, remedy to seek review under Article 188 of the Constitution read with Order XXVI, Rule 1 of the Rules, is used only under exceptional circumstances falling within the purview of review and in aid of justice. The judgment under review was passed after hearing the counsel for the parties at length and examining their pleadings and the material available on. record. The Bench seized of the case, had clearly granted the petitioner sufficient indulgence in the conduct of the proceedings to ensure that the petitioner obtained a fair hearing and no miscarriage of justice had occurred. The learned Judges constituting the Bench rendered the decision by majority of 6 to 1, A holding that the material produced on behalf of the President, was relevant and came to the conclusion that all the grounds mentioned in the order of dissolution had nexus with the pre‑conditions mentioned in Article 58(2)(b) of the Constitution. The Order and Judgment under review does not suffer from any manifest defect for enforcing the same. Clearly, the grounds now urged by the petitioner for rehearing the matter in the garb of review petition cannot be allowed. This Court will not sit as a Court of appeal against the order/judgment under review. No mistake has crept in the Short Order/Judgment under review. There is, therefore, no justification for reveiwing the same, in so far as it relates to the merits of the case. Refer Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and others PLD 1997 SC 865, wherein a three‑member Bench of this Court, presided over by my learned brother Saiduzzaman Siddiqui, J. (as he then was) (now the Hon'able Chief Justice of Pakistan), highlighting tote scope of review proceedings before this Court after exhaustive examination of the case law on the subject, inter alia, observed:‑‑

"Supreme Court derives the power to review its decisions under Article 188 of the Constitution of Islamic Republic of Pakistan.

To regulate the practice and procedure of Supreme Court and to govern the proceedings initiated before it, Supreme Court has framed the Rules known as Supreme Court Rules, 1980 in exercise of the power conferred by Article 191 of the Constitution, Rule 1 of Order XXVI regulates the review proceedings before Supreme Court.

The power of review, available to Supreme Court under the above provisions in respect of matter arising on the civil side is analogous to the power of the Civil Courts under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908.

Where a conscious and deliberate decision has been made with regard to the nature of orders which it is empowered to pass under a provision of law only, because another view with regard thereto is canvassed cannot and does not constitute a ground for review.

A review can lie on the ground of an error only if it is, material to the conclusion reached in the judgment sought to be reviewed.

The exercise of review jurisdiction does not mean a rehearing of the matter and as finality attaches to the orders, a decision, even though it is erroneous per se, would not be a ground to justify its review. Accordingly, in keeping with the limits of the review jurisdiction, it is futile to reconsider the submissions which converge on the merits of the decision.

Before an error can be a ground for review it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self‑evident and floating on he surface and does not require any elaborate discussion or process of ratiocination.

Review of the order of Supreme Court on the ground that after the passing of the orders by Supreme Court there has been improvement in `the status of the petitioner is not a valid ground for review.

A review petition would not lie on the grounds which were already advanced at the hearing of appeal or petition and were attended to by the Court.

Review petition cannot be allowed to be pressed on the basis of material available and not produced earlier but produced for the first time in review.

Contention not raised at the hearing of petition for leave to appeal or appeal cannot be allowed to be raised in review proceedings.

The ground of non‑hearing of appellant in respect of order passed in suo Motu jurisdiction by a lower forum can be a ground of error apparent on the face of the order.

Assumption of Court that the petitioner was successor‑in‑interest of the transferee while in fact it was not so, can be considered as an error apparent on the face of the order.

Review proceedings cannot partake re‑hearing of a decided case. Therefore, if the Court has taken a conscious and deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or order cannot be obtained on the grounds that the Court took an erroneous view or that another view on reconsideration is possible. Review also cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced. A ground not urged or raised at the hearing of petition or appeal cannot be allowed to be raised in review, proceedings. Only such terrors in the judgment/order would justify review, which are self‑evident, found floating on the surface, are discoverable without much deliberations, and have a material bearing on the final result of the case.

4. A five‑member Bench of this Court in the case of Mohtarma Benazir Bhutto v. The State PLD 1999 SC 937, has reiterated the above view while dismissing the review petition of the State against Mohtarma Benazir Bhutto, One of us (Irshad Hasan Khan, 1.), who authored the judgment observed :---

5. The precise submission of the learned counsel for Mohtarma Benazir Bhutto and Senator Asif Ali Zardari, is that the question raised in the petitions for review are in the nature of rehearing of the petitions for leave to appeal, which could not be granted on grounds urged by the learned Attorney‑General.

6. The fact of above review petitions depends on the scope and applicability of Order XXVI, Rule 1, the Supreme Court Rules, 1980 (hereinafter referred to as the Rules). Under Rule 1 above, the power of review is to be exercised in a criminal proceedings on the ground of an. error apparent on the face of the record' and in a civil proceedings on ground similar to those. mentioned in Order XLVII, Rule I of the C.P.C. Under the latter provision, the power of review can also be exercised if there is a mistake or 'error apparent on the face of the record', apart from other grounds mentioned in Order XLVII, Rule 1 of the C.P.C.

7. The question which needs examination is as to what is the scope of the phrase 'a mistake/error on the face of the record'; and what is the scope and nature of the proceedings intended for the discovery and correction of such an error.

8. The phrase 'error apparent on the face of the record' and the scope au ' nature of the review proceedings are well‑settled. Clearly, the error contemplated under Order XXVI of the Rules, is an error so manifest, so clear, that no Court can permit such an error to remain on record. Such an error is not forthcoming on the record in the instant case. The State cannot, therefore, be permitted to re‑argue the petitions for leave to appeal in the garb of review petition in the absence of any errors apparent on the face of the record, which is lacking here. To permit a review on the ground of incorrectness would amount to granting the C Apex Court the jurisdiction to hear appeal against its own judgment. Such a course is neither contemplated under the Constitution nor the Rules."

5. In subststnce, the view taken by the majority Judges in the judgment under review. was that the petition merited dismissal on the basis of the material produced before the Court on behalf of the President, which had nexus with the grounds mentioned in the impugned order of dissolution as well as grounds specified under Article 58(2)(b) of the Constitution. However, in a separate note, one of us (Irshad Hasan Khan, J.), further observed:‑‑

.... ...that I am unable to share the observations of my loathed brother that the averments made in various newspapers/press reports could be considered as proof of extra judicial killing as well as other grounds in the dissolution order, I am recording my opinion separately in support of the short order, dated 29th January, 1997 dismissing the petition against the dissolution of National Assembly,

The material including newspaper clippings etc., relied upon by the President in dissolving the Assembly is, of course, relevant and can be taken into consideration as admissible material on the basis of which a person of ordinary prudence would conclude that the matters and events narrated therein did occur but not a strict proof of the matters stated therein as if adjudicated in a regular trial."

6. Our learned brother Munawar Ahmed Mirza, J., while upholding the order of dismissal of the National Assembly also observed:‑‑ '"I agree with the conclusions and observe that material on record in conjunction with each ground enumerated above accumulatively constituted adequate justification for the President to dissolve National Assembly; by virtue of Power contained in Article 58(2)(b) of the Constitution."

7. When faced with this, Mr. Aitzaz Ahsan argued that there are certain paragraphs in the judgment of Mr. Justice Sajjad Ali Shah. the then Hon'ble Chief Justice at pages 465, 477, 492, 495, 501, 502, 508. 509, 511, 512, 532, 533 and 539, wherein findings had been recorded against the petitioner in a summary manner, as if the petitioner was on trial; and m the judgment of the Mr. Justice Saleem Akhtar, J. (as he then was), at pages 613, 635 and 636, findings have been recorded that have tendency to have effect beyond mere issue of the dissolution order under Article 58(2)(b) of the Constitution. He prayed that the above findings should not be considered as proof of the allegations in any other judicial forum.

8. When confronted with this, Ch. Muhammad Farooq, the learned Attorney‑General frankly stated that the observations made by the then Hon'ble Chief Justice Mr.Justce Sajjad Ali Shah and Mr. Justice Saleem Akhtar (as he then was), were based on tentative appraisal of the material produced before the Court with reference to upholding the order of dissolution as well as the grounds specified under Article 58(2)(b) of the Constitution and not beyond that.

9. Mr. Aitzaz Ahsan is satisfied with the above statement. Also refer Khalid Malik and others v. Federation of Pakistan and others PLD 1991 Kar. 1, wherein Saiduzzaman Siddiqui (Acting C.J. as he then was) observed:‑‑
"It is not permissible in these proceedings to investigate the correctness or otherwise of the assertion made on the basis of the above material as it is outside the scope of the power of judicial review but this much can be safely said that the grounds of horse‑trading and corrupt practices of the House referred by the President in the dissolution order finds full support from the above material and bear reasonable nexus to the conditions prescribed under Article 58(2)(b) of the Constitution. "

10. In order to remove any doubt, we hereby clarify that the observations made in the impugned short order/judgment referred to above, are restricted, in their application, to the proceedings under Article 184 of the Constitution for the purposes of Article 58(2)(b) alone and are not to be treated as proof of the charges for any other purpose.

11. With the above observation, the review petition is dismissed.

M.B.A./B‑41/S Order accordingly.