2006 PLP 1574 (SCMR)

JAVED IQBAL, J.

Petitioner has sought review against the judgment, dated 12-9-2005 whereby the civil appeal preferred on behalf of petitioner has been dismissed.

2. Heard Mr. Abdul Samad Khan, learned Advocate Supreme Court on behalf of petitioner at length who mainly argued on the question of entitlement of the petitioner in land in question which we afraid cannot be determined while deciding this review petition and besides that the relevant points argued while arguing the civil appeal have been adverted to, dilated upon and decided in a comprehensive manner in the judgment impugned, relevant portion whereof is reproduced hereinbelow for ready reference:-- "(5) We have carefully examined the respective contentions as agitated on behalf of the appellants in the light of relevant record which has been perused with the eminent assistance of learned counsel on behalf of the parties. The judgments of all the Courts below have been examined with care and caution. After having gone through the entire record we are of the considered opinion that the appellants have failed miserably to substantiate their claim by adducing any cogent or concrete documentary or oral evidence. We have carefully perused the statement of appellant who has admitted in a categoric manner that suit-land is Shamilat Kandi Mundizai which is yet to be partitioned and further admitted that defendant No.1 is co-sharer of the land in question. The statement of Muhammad Zaman (P. W.3) hardly renders any assistance to the case of appellants for the simple reason that Muhammad Zaman (P. W.3) had relinquished the possession of the suit-land hence no importance can be attached to his statement. Besides that the categoric findings of the learned Peshawar High Court in Writ Petition No. 195 of 1982 with regard to possession of the suit-land cannot be ignored which were never challenged before this Court and attained finality by now. Moreover, the factum of possession being question of fact has been determined by the learned trial Court, determination whereof has been upheld by the learned appellate forum and High Court hence the question of any interference does not arise. The question of fact stands concluded by consistent findings of the three Courts below and no reason could be shown to exist us which could persuade us to reopen the said issue. There is no denial of the fact that the result of proceedings initiated under section 145, Cr.P.C. would have no bearing qua the partition of Shamilat which is yet to be partitioned. "

3. A bare perusal of the relevant paragraph of the judgment impugned would reveal that a categoric mention has been made that the result of proceedings enunciated under section 145, Cr.P.C. would have no bearing qua the partition of Shamilat which is yet to be partitioned, hence the question of entitlement of the petitioner cannot be decided as, pressed time and again by the learned Advocate Supreme Court while arguing the review petition. It is well-settled by now that a review petition is not competent, where neither any new and important matter or evidence has been discovered nor is any mistake or error apparent on the face of record. Such error may be an error of fact or of law, but it must be self-evident and floating on surface and not requiring any elaborate discussion or process of ratiocination. Orders based on erroneous assumption of material facts or without adverting to a provision of law or a departure from undisputed construction of law and the Constitution, may amount to error apparent on the face of record. Error, on the other hand, must not only be apparent, but must also have a material bearing on the fate of case and be not of inconsequential import. If judgment or finding, although suffering from an erroneous assumption of facts, is sustainable on other grounds available on record, review not justifiable notwithstanding error being apparent on the face of record. Where order under review did not appear to have been vitiated by any error on the face of record nor any other good and sufficient reason was given for review of order, petition for review was dismissed. Nawab Bibi v. Hamida Begum 1968 SCMR 104; Master Tahilram v. Lilaram 1970 SCMR 622; Zulfikar Ali Bhutto v. State PLD 1979 SC 741 and Rashiduddin Qureshi v. The State 1979 SCMR

99. The review petition has been examined on the touchstone of the criterion as mentioned hereinabove and in our considered opinion it has got no merit which is accordingly dismissed. S.A.K./A-50/SC Review dismissed.