P L D 2005 Supreme Court 93 (PLP)

2. Precisely stating the facts giving rise to objections filed by the complainant are that petitioners Muhammad Younas and others assailed their conviction/sentence by challenging the judgment dated 24th September, 1998 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi delivered in Cr.As.125 and 126 of 1996 and Murder Reference No. 129 of 1996. The criminal petition for leave to appeal was dismissed by a Division Bench of this Court comprising one of us Mr. Justice Iftikhar Muhammad Chaudhry and Mr. Justice Rana Bhagwandas on 18th April, 2000. The petitioners presented a Criminal Review Petition No.8 of 2000 through their original counsel and Advocate-on -Record. Subsequent thereto an application under Order XXXIII, Rule 1, read with Rule 6 of the Rules was filed with the prayer that permission may be allowed to Mr. Abdul Hafeez Pirzada, Senior Advocate Supreme Court to argue the Review Petition on behalf of the petitioners. Relevant para. therefrom is reproduced hereinbelow:-- "(3) That the review petitioners besides their earlier Advocate have also requested Mr. Abdul Hafeez Pirzada, Senior Advocate, Supreme Court to appear on behalf of the petitioners and assist the august Court. However, Mr. Pirzada has agreed conditionally upon this Hon'ble Court being pleased to relax the rule and grant him permission to address the Hon'ble Court. Therefore, in the interest of justice petitioners seek permission of this Hon'ble Court to allow the Senior Counsel to address the Court in addition to the Counsel who argued the appeal."

3. The case was heard by a Bench of three members including Mr. Justice Iftikhar Muhammad Chaudhry, Mr. Justice Sardar Muhammad Raza Khan as well as Mr. Justice Rana Bhagwandas on 4th April, 2002. During the course of arguments Mr.Munir Ahmed Bhatti, Advocate Supreme Court stated that substantial question of law having public importance is involved in this Review Petition, therefore for the sake of proper assistance permission be accorded to Mr. Abdul Hafeez Pirzada, Senior Advocate Supreme Court to appear in this Review Petition. Thus, following order was passed:-- "This application has been moved by learned counsel for petitioners seeking permission of this Court to allow Mr. Abdul Hafeez Pirzada, Senior Advocate Supreme Court to appear in this Review Petition. According to Mr. Munir Ahmed Bhatti, Advocate Supreme Court as substantial question of law having public importance is involved in this review petition, therefore, for the sake of proper assistance permission may be granted to him.

2. Learned counsel appearing for complainant, however, opposed the request.

3. In view of the fact that according to learned counsel for petitioners substantial question of law having public importance is involved in this case, therefore; we are inclined to relax Order XXVI, Rule 6 of Supreme Court Rules, 1980. As such Mr. Abdul. Hafeez Pirzada, Senior Advocate Supreme Court is allowed to appear in this case. However, it is made clear that Mr. Abdul Hafeez Pirzada, Senior Advocate Supreme Court should be available to argue the case on 18th April, 2002. If on the said date he failed to appear then Mr. Munir Ahmed Bhatti, Advocate Supreme Court original counsel will argue the case." Cr. Misc. Application No.78 of 2002 is allowed. Against above order instant objection petition has been filed.

4. Mr. S.M. Zafar, learned Senior Advocate Supreme Court for complainant contended that ground urged by Mr. Munir Ahmed Bhatti, Advocate Supreme Court seeking permission for the appearance of. Mr. Abdul Hafeez Pirzada, Senior Advocate Supreme Court to argue the Review Petition being a substantial question of law having public importance is no ground to relax the provisions of Order XXVI, Rule 6 of the Rules. Firstly for the reasons that no such ground was mentioned in the application seeking permission for the appearance of Mr. Abdul Hafeez Pirzada, Senior Advocate Supreme Court. Secondly in every case always a substantial question of law is involved but this Court as per its consistent practice had been very slow in granting permission to other counsel to appear in Review Petition because if this practice is allowed to continue, then no finality will be attached to the judgments of this Court. In addition to it whenever a junior counsel, having comparatively less experience will lose a case, on this very plea a senior counsel will be engaged as a result whereof there will be no end to litigation and thirdly allowing permission to senior counsel to replace a junior counsel after the final decision of the case in Review proceedings would give rise to so many other uncalled for difficulties. In support of his argument reliance was placed by him on the judgments of this Court reported as Abdul Majeed and another v. Chief Settlement Commissioner and others 1980 SCMR 504; Waheeduddin Kitchlew v. Murree Improvement Town Trust, and others 1981 SCMR 611; Rashid and another v. The State 1983 SCMR 295; Mst. Maqbool Begum and others v. Gullan and others 1983 SCMR 903 and Jiwana and others v. Fazal Rahim Khan and others 1984 SCMR 1332.

5. On the other hand Mr. Abdul Hafeez Pirzada, Senior Advocate Supreme Court contended that this Court has exercised discretionary jurisdiction after hearing Mr. Munir Ahmed Bhatti, Advocate Supreme Court original counsel who sought permission on his behalf to argue the case as substantial question of public importance is involved in this case, therefore, order dated 4th April, 2002 cannot be reviewed because there is no apparent error in it. According to him Order XXVI, Rule 6 of the Rules has conferred plenary powers upon this Court to dispense with the requirement that the counsel who has earlier argued the main case must address the argument in the Review Petition as well. He stated that instant petition has been drawn by Mr. Munir Ahmed Bhatti, Advocate Supreme Court who is also present in Court whereas Advocate-on- Record is also the same, therefore, permission has rightly been granted to him to argue the case strictly in accordance with the Rules as such objection filed by the complainant merits dismissal.

6. We have heard the learned counsel for both the parties at length. It is to be noted that Mr. Munir Ahmed Bhatti, Advocate Supreme Court had not moved an application seeking his exemption from addressing the Court in the Review Petition in terms of Order XXVI, Rule 6 of the Rules. The application on which order dated 4th April, 2002 was passed A is filed under the residuary provisions i.e. Order XXXIII, rule 1 read with Rule 6 of the Rules. It is a uncontroversial state of law that in presence of specific provisions of law the residuary provision generally meant to exercise inherent jurisdiction like section 151, C.P.C. is not invoked, therefore, the application submitted in this behalf by the learned counsel was not competent.

7. Besides it, as per contents of para. 3 of the application which has been reproduced hereinabove, it was not stated that because substantial question of law of public importance is involved in the case, therefore, he has availed the services of Mr. Abdul Hafeez Pirzada, Senior Advocate Supreme Court to assist this Court. However, perusal of order dated 4th April, 2002 also does not indicate that which substantial question of law. was identified by him to seek permission allowing Mr. Abdul Hafeez Pirzada, Senior Advocate Supreme Court to address the Court in Review Petition. It is also noteworthy that he did not cite any judgment in favour of proposition that to argue a substantial question of law senior counsel can be allowed to address the Review Petition. Even if he had pointed out such question of law, still permission without complying the provision of Order XXVI, rule 6 of the Rules, granting permission to senior counsel to argue the Review Petition was not permissible in view of the consistent view of this Court as it has been reported from time to time in the judgments which have been relied upon may be noted that perusal of these judgments indicates that this Court has always discouraged substitution of another counsel at the stage of hearing of the Review Petition, definitely with a view that is such practice is adopted, there would be no end to litigation .and replacement of original counsel by another counsel at the Review stage for the reasons that he intends to argue a substantial question of law having public importance, would lead to no end to the litigation. Had the learned counsel assisted us properly by pointing out the judgment which have been referred during the course of arguments by Mr. S.M. Zafar, Senior Advocate Supreme Court then perhaps we would have not entertained this argument. The Order XXVI, rule 6 of the Rules manifestly insists upon the presence of the counsel who has originally argued the case to address the Court so he could be confined to the arguments which he has earlier addressed and if a new Advocate is allowed, perhaps he would be urging altogether new points treating as is he is addressing arguments in appeal and not in Review Petition. Besides it, finality is always attached to the judgment of this Court and in view of the limited scope of the Review under Article 188 of the Constitution of Islamic Republic of Pakistan in review proceedings case cannot be reopened for the lengthy arguments on the points on which final arguments were not addressed. In view of what has been discussed hereinabove we are of the opinion that it would be in the interest of justice to revive our earlier order dated 4th April, 2002 by recalling the same. Accordingly objection raised by Mr. S.M.Zafar, Senior Advocate Supreme Court is sustained. However, Mr. Munir Ahmed Bhatti, Advocate Supreme Court, who is present in Court was called upon to argue the case but he stated that some time be given to him so he may prepare the brief because he was under the impression that he would not address the Court in Review Petition in view of the order dated 4th April, 2002. Request is allowed. Case is adjourned to a date in office M.B.A./M-156/S Order accordingly