P L D 2018 Supreme Court (AJ&K) 53 (PLP)

RAJA SAEED AKRAM KHAN, J.--The above titled review petition has been filed for review of the judgment of this Court dated 05.12.2015, whereby the application filed by the petitioner, herein, under section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974 read with Order XLIII, Rules 1 to 5 of the Supreme Court Rules, 1978, has been dismissed.

2. The gist of the facts necessary for disposal of this review petition is that the petitioner, herein, was serving as Secretary to Government, Information Department of Azad Jammu and Kashmir. On the allegation of misconduct, he was proceeded against under the provisions of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 and at the conclusion of the proceedings the major penalty of dismissal from service was awarded to him by the competent authority. The petitioner filed a writ petition against the said order passed by the authority which was accepted by the learned High Court vide judgment dated 05.10,1999. The judgment of the High Court was challenged before this Court. The appeal was heard by the division bench but due to difference of opinion among the learned members of the bench the matter was referred to third Judge. On account of different reasons the matter remained pending for a long time and at the end, the petitioner, herein, filed an application before the learned Chief Justice of the time, Mr. Justice Muhammad Reaz Akhtar Chaudhry that as no other Judge was available to hear the appeal of the petitioner, therefore, under section 42(13)(c) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the judgment of the High Court may be deemed to be the judgment of the Supreme Court. The application was accepted and it was ordered that the judgment of the High Court dated 05.10.1999, shall be deemed to be the judgment of the Supreme Court. The respondents, herein, filed a review petition against the order dated 14.09.2009, which was admitted for regular hearing and a larger bench was constituted to decide the review petition. After necessary proceedings vide order dated 09.05.2011, the review petition was accepted and the appeal was restored. Thereafter, this Court vide judgment dated 04.10.20121 while accepting the appeal filed by the respondents, herein, set aside the judgment of the High Court dated 05.10.1999 and dismissed the writ petition. Later on, on 22.12.2014, the petitioner, herein, moved an application under section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974, read with Order XLIII, Rule 5 of the Supreme Court Rules, 1978, which was dismissed vide judgment under review by this Court, hence, this review petition.

3. Mr.Mujahid Hussain Naqvi, the petitioner, reiterated all the grounds taken in the review petition and submitted that this Court while handing down the judgment under review has not attended to and resolved the points raised by the petitioner at the time of hearing the case. He added that the review petition filed by the respondents, herein, after the decision of the matter by the Hon`ble third Judge was incompetently filed without annexing the mandatory documents. Furthermore, the order dated 09.09.2009, through which the judgment of the High Court was declared as the judgment of this Court, was lawfully passed by the Hon'ble Chief Justice of the time, therefore, the subsequent order passed by another third Judge for placing the matter again before the Court was without lawful authority. He added that at the time of hearing the case the petitioner due to ailment was unable to place his point of view before the Court, therefore, in this state of affairs, the petitioner has been condemned unheard and hearing of the case afresh is justified for doing complete justice. He referred to and relied upon the case law reported as Sangram Singh v. Election Tribunal Kotach and another [AIR 1955 SC 425], Mujahid Hussain Naqvi v, Azad Government and others PLD 2007 SC(AJ&K) 92 and PLD 2013 SC 829.

4. Conversely, Mr.Asghar Ali Malik, Advocate, the learned counsel for the respondents strongly controverted the arguments advanced by the petitioner. He submitted that the instant review petition is hopelessly time barred. He added that the review petition has been filed on 04.01.2016, through which the petitioner wants review of the judgments of the Court dated 09.05.2011 and 04.10.2012, after a lapse of considerable delay. He added that the petitioner just to cover the limitation mentioned in the review petition that the same has been filed for review of the judgment of this Court delivered on 05.12.2016, whereas, the grounds of review petition speak otherwise. The appeal filed by the respondents was finally decided against the petitioner by this Court vide its judgment dated 04.10.2012 and the petitioner has not filed any review petition against the said judgment which has attained finality, therefore, through the instant review petition the said judgment cannot be disturbed. He also added that the conduct of the petitioner is highly objectionable as he got the order of his reinstatement into service from the competent authority by concealing the judgments of this apex Court. Later on, the authority reviewed his order, whereupon, the petitioner filed writ petition before the High Court which has been dismissed while imposing heavy cost to the tune of Rs.50,000/-. In this regard, the learned counsel brought on record a copy of the judgment of the High Court dated 08.06.2017 delivered in the case titled Mujahid Hussain Naqvi v. Azad Government and others (Writ Petition No.2277 of 2014). He also referred to and relied upon the case law reported as University of AJ&K Muzaffarabad v. Engineer Muhammad Khalid [2004 SCR 84].

5. I have heard the arguments and gone through the record made available. It appears from the grounds taken in the review petition that the petitioner in the garb of the judgment under review dated 05.12.2015, actually wants the review of the judgments of the Court dated 09.05.2011 and 04.10.2012, passed in Civil Review Petition No.20 of 2010 and Civil Appeal No.165 of 2000, titled The Azad Government and others v. Mujahid Hussain Naqvi. For better appreciation, it will be useful to reproduce here the prayer clause of the review petition which reads as under:- "In the circumstances enumerated above, it is humbly prayed that by accepting this application for review of judgment dated 05.12.2015 under Order XLVI, Rules 1 to 10 read with section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and Order XLIII, Rules 1 to 5 of Supreme Court Rules 1978 as well all enabling provisions of the Interim Constitution Act, 1974 and the Supreme Court Rules, the judgment of Hon'ble Supreme Court dated 05.12.2015 Annexure 'PA' doth in application under section 42-A of Interim Constitution Act, titled `Mujahid Hussain Naqvi v. Azad Kashmir Government and others' besides the order of Hon'ble Supreme Court dated 11.05.2011 Annexure 'PN' passed in Civil Review No.20/2009/2010 titled Azad Govt. of the State of AJ&K and others v. Mujahid Hussain Naqvi and another' may very graciously be ordered to be recalled, cancelled and set aside. And it may kindly be declared that the order passed by the learned third (another) Judge of the Supreme Court in Civil Misc. No.40/2002 on 09.09.2009 announced on 14.09.2009 and Judgment passed in Appeal No.165/1999 dated 08.05.2010 respectively Annexures 'PG' and 'PD' are intact, in force, stand revived and hold the ground with all their bearings. In the alternative de novo hearing of application under section 42-A etc. of Interim Constitution Act, No.429/2014 Annexure 'PB' and Review Application No.20/2009 may very graciously ordered to be conducted by the learned Supreme Court, as provided by Section 42(13)(c) of the difference of opinion between the learned Judges constituting the original bench), in recalling, revocation and rescindence of all post proceedings conducted thereafter, especially the judgment passed by the learned Supreme Court in case titled 'Azad Kashmir Government and others v. Mujahid Hussain Naqvi and another [Civil Appeal No.165/1999 dated 04/09.10.2012] copy already attached with this application as Annexure 'PO'. Any other relief which is found appropriate to be granted to the applicant petition in law, justice and equity is also humbly solicited on his behalf." The controversy involved in the matter is that the petitioner was serving as Secretary to Government. He was proceeded against under the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 and was dismissed from service. He filed writ petition before the High Court for his reinstatement in service which was accepted. The respondents herein, challenged the judgment of the High Court before this Court and due to the difference of opinion between the two learned members of the division bench, the matter was referred to third Judge but due to the tactics played by the petitioner the matter remained pending for a long-time. During the pendency of appeal, the petitioner moved an application before the learned Chief Justice of the time for declaring the judgment of the High Court as the judgment of the Supreme Court which was accepted vide order dated 09.09.2009. The respondents, herein, filed a petition for review of the said order which was admitted for regular hearing and a larger bench was constituted for hearing the matter. Consequently, the order dated 09.09.2009, was recalled and the appeal which was referred to the third Judge for hearing and disposal was restored. This Court after hearing the parties vide judgment dated 04.10.2012, accepted the appeal filed by the respondents, herein, and dismissed the writ petition filed by the petitioner, herein, before the High Court for his reinstatement into service. The petitioner, herein, has not filed any review petition against the said judgment which has attained finality. Later on, he moved an application on 22.12.2014, under section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974, read with Order XLIII, Rules 1 to 5 of the Supreme Court Rules, 1978 and sought review of the judgments which had attained finality. The said frivolous application was dismissed by this Court while observing as under: "No review petition provided under law was moved against the judgment passed by this Court on 04.10.2012 within the prescribed period of limitation rather to file present application after a considerable delay. In this state of affairs, we are constrained to hold that the application filed by the applicant is misconceived and the same has been filed beyond the prescribed period of limitation when much water has been flown under the bridge. Through this application, the applicant wants to reopen the case which has already been decided by this Court." The conduct of the petitioner is highly deplorable as firstly while referring to the Constitutional as well as statutory provisions to demonstrate that the Supreme Court for doing complete justice may extend any relief to him; he moved a baseless application and sought review of such judgments which had attained finality and after becoming unsuccessful, he again filed the instant review petition for review of the same judgments. It may be observed here that although this Court for doing complete justice may review its judgments/orders but 'complete justice' doesn't mean that the Court just to satisfy a party/person may contravene the law and reopen such case which has already been decided in accordance with law and attained finality. The Court has to decide the cases keeping in view the facts as well as the law applicable and cannot go beyond the parameters/limitations determined by law. The apex Court of Pakistan in a case reported as Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and another [PLD 1962 SC 335], dismissed five review petitions with costs while interpreting the term 'complete justice'. The relevant paragraph of the judgment is reproduced here which read as under: - "For my own part, I do not regard the absence of any guiding principles, which would necessarily be of a restrictive character, as a matter for regret. I consider that in sub-Article (3) of Article 163, the late Constitution has provided a sufficient indication, notwithstanding that it is couched in wide terms, of the full extent of the power of review contemplated by the late Constitution. The subsection reads as follows:- 'The Supreme Court shall have power to issue such directions, orders, decrees or writs as may be necessary for doing complete justice in any cause or matter pending before it, ..' For the present purpose, the emphasis should, in my opinion, be laid upon the consideration that, for the doing of 'complete justice' the Supreme Court is vested with full power, and I can see no reason why the exercise of that full power should be applicable only in respect of a matter coming up before the Supreme Court in the form of a decision by a High Court or some subordinate Court. I can see no reason why that purpose, it its full scope, should not also be applicable for the purpose of reviewing a judgment delivered by the Supreme Court itself: provided that there be found a necessity within the meaning of the expression 'complete justice' to exercise that power. It must, of course, be borne in mind that by assumption, every judgment pronounced by the Court is a considered and solemn decision on all points arising out of the case, and further that every reason compels towards the grant of finality in favour of such judgment delivered by a Court which sits at the apex of the judicial system. Again, the expression 'complete justice' is clearly not to be understood in any abstract or academic sense. So much is clear from the provision in Article 163 (3) that a written order is to be necessary for the purpose of carrying out the intention to dispense 'complete justice'. There must be a substantial or material effect to be produced upon the result of the case if, in the interests of 'complete justice' the Supreme Court undertakes to exercise its extraordinary power of review of one of its own considered judgment. If there be found material irregularity, and yet there be no substantial injury consequent thereon, the exercise of the power of review to alter the judgment would not necessarily be required. The irregularity must be of such a nature as converts the process from being one in aid of justice to a process that brings about injustice. Where, however, there is found to be something directed by the judgment of which review is sought which is in conflict with the Constitution or with a law of Pakistan, there it would be the duty of the Court unhesitatingly to amend the error. It is duty which is enjoined upon every Judge of the Court by the solemn oath which he takes when he enters upon his duties, viz., to 'preserve, protect and defend the Constitution and law of Pakistan.' But violation of a written law must be clear. An instance of review based upon such violation will be found in the Privy Council case North-West Frontier Province v. Suraj Narain Anand, the ascertainment of a breach by a mode of interpretation will not in all cases furnish good ground for interference. For the interpretation of the Constitution and the laws is a function which is entrusted especially to the Superior Courts of the country, and while it is true that in doing so they will follow the generally recognised principles applicable to statutory interpretation, in elaboration of the rules contained in the interpretation statutes namely, the General Clauses Act, that is a field in which a degree of latitude is of necessity to be allowed to them. The law come in an infinite variety, and the use of a language, even of the simplest and commonest terms, is so kaleidoscopic and subject to such delicate shades of meaning and emphasis that the duty frequently falls upon the Superior Court to establish principles whereby effect may be given to the law according to the intention of the legislators, and that despite ambiguity or deficiency in the language they have employed. The task is frequently complicated through ineptitude on the part of the Legislature and its legislative draftsmen in the use of words or in the thorough delineation, by the machinery of a statutory instrument, of the whole meaning and purpose of the legislation."

6. In the case in hand, the perusal of the record shows that the order passed by the learned Chief Justice of the time dated 09.09.2009, was reviewed by the larger bench of the Court vide judgment dated 09.05.2011 and the appeal filed by the respondents, herein, was restored. The points agitated by the petitioner at that time were considered and resolved by the Court. Thereafter, the main appeal filed by the respondents, herein, was heard by the division bench of the Court in which the petitioner filed written arguments and this Court after detailed deliberation accepted the appeal and dismissed the writ petition filed by the petitioner before the High Court vide judgment dated 04.10.2012, thus, it cannot be said that the petitioner has been condemned unheard. During the course of arguments, the petitioner raised a point that due to the difference of opinion the matter was referred to a third Judge who alone was competent to dispose of the case, whereas, the same has been heard by two Judges which is violation of section 42(13)(c) of the Interim Constitution Act, 1974. The perusal of judgment under review shows that on the strength of principle of law enunciated by the Court in a judgment delivered in a case titled Ashfaq Ahmed and others v. Ch.Maqbool Raza and others (Civil Review Petition No.23 of 2015, decided on 10.01,2013), this point has already been considered and resolved by the Court while passing the judgment under review. The petitioner in the grounds of review petition reiterated all the points which have already been dealt with by this Court in the judgment dated 04.10,2012. At this stage, the judgment delivered by the larger bench of the Court in the review petition titled Azad Government and others v. Mujahid Hussain Naqvi on 09.05.2011 and the judgment of the division bench recorded in Civil Appeal No.165, titled Azad Government and others v. Mujahid Hussain Naqvi on 04.10.2014, cannot be reviewed as the same have become past and closed transaction. In this regard, the learned counsel for the respondents has rightly relied upon the case law reported as University of AJ&K Muzaffarabad v. Engineer Muhammad Khalid [2004 SCR 84], wherein, this Court has held that:-- "

10. Before proceeding further it appears necessary to say that any finding which has attained finality by the lapse of time or on account of conduct of the parties cannot be reopened as that finding become past and closed transaction." It appears that the petitioner by using the judgment under review just as a tool wants to cover the limitation, whereas, the intention of the petitioner which is apparent from the grounds of review petition is to reopen the matter which has been decided through the judgments supra. The petitioner repetitively by filing frolicsome applications/petitions is wasting the precious time of the Court which is very regrettable, hence, he is warned to keep away from such practice in future; otherwise, stern action under law shall be taken against him. The blemished conduct of the petitioner is also evident from the copy of the judgment of the High Court dated 08.06.2017, delivered in the case titled Mujahid Hussain Naqvi v. Azad Government and others (Writ Petition No.2277 of 2014) brought on record by the learned counsel for the respondents, which shows that despite the fact that the matter was finally decided by this Court vide judgment dated 04.10.2012 against the petitioner, the petitioner while placing the order, which had been reviewed by the Court, before the competent authority, i.e. Prime Minister, gave the impression to the authority that the matter has been decided in his favour and succeeded to get an order for his reinstatement into service. Thereafter, for the implementation of the order of the authority, the petitioner filed a writ petition before the High Court, howover, the learned High Court after considering all aspects of the case dismissed the writ petition with special costs of Rs.50,000/-. The concluding paragraph of the judgment of the High Court reads as under:- "

12. The epitome of above discussion is that, finding no substance in the instant writ petition, the same is hereby dismissed in limine with special costs of Rs.50,000/- to be deposited with the 'Nazir' of this Court, within fortnight period."

7. The case law referred to by the petitioner having distinguishable facts and features is not applicable to the case in hand, therefore, needs not to be discussed. In view of the above, this review petition stands dismissed with costs. ZC/26/SC(AJ&K) Petitiion dismissed.