2000 PLP 2092 (YLR)

BASHARAT AHMAD SHAIKH, J.‑‑‑This is a review petition in which the petitioner Justice (Rtd.) Sardar Muhammad Ashraf Khan, former Chief Election Commissioner, has sought reversal of the judgment of this Court which was pronounced in Civil Appeal No. 11 of 2000 titled Azad Government of the State of Jammu and Kashmir V. Justice (Rtd.) Sardar Muhammad Ashraf Khan.

2. Appearing in support of the review petition Mr. Muhammad Azam Khan, Advocate submitted that the Chief Secretary of the Government was not authorised to file, the appeal in the Supreme Court. Appeal No.11 of 2000 was filed on the strength of a vakalatnama signed by the Chief Secretary acting on behalf of the Azad Government. At the hearing of the appeal this point was not raised. It is well‑settled that a new point which was not raised at the time of the A hearing of the appeal cannot be raised in a review petition for the first time. This view was expressed by this Court in Muhammad Yasin v. Jan Muhammad and others 1992 SCR 129 and has all along been followed. The relevant portion of the judgment is reproduced below: ‑‑‑ "The scope of a review petition is admittedly limited. The scope of the review petition has been subject- matter of many judgments of this Court and those of the Supreme Court of Pakistan. One point with regard to which it can be safely said that it is well‑settled is that a new point cannot be raised in a review petition. It follows that if a point is not raised at the time of the hearing of the appeal it cannot form the basis of a review petition. . In this connection we may refer to the following observation made by this Court in Aziz‑ud‑Din Qureshi v. Rehmatullah Zia 1991 PLC. (C.S.)135. "It is well‑settled that a new point cannot be raised in a review petition. If any authority is needed on this point we may refer to Muhammad Ishaque and others v. Falk Sher and another 1988 S.C.M.R. 853 and Kamal Din v. Province of Punjab 1987 S.C.M.R. 182." Similarly in Allah Ditta V. Abdul Ghafoor 1993 SCR 63 it was observed as follows:‑‑ "It is well‑settled principle of law that the points which are not pressed at the time of arguments, cannot be male basis for the review of the judgment subsequently. The review is competent only if there is a mistake apparent on the face of record. If a party or his counsel does not press a point at the time of hearing of an appeal, it cannot be said by any stretch of imagination that it is mistake apparent on the face of record. If a counsel abandons a point without the instruction of his client, the matter is between the counsel and his client; no review is competent on that score because this is not a mistake on the face of record or a matter analogous to it."

3. It is explained in the review petition that this objection could not be taken "because in ordinary course of things it was not expected of a senior Advocate of the status of Advocate‑General to have filed the said appeal on the strength of the power of attorney executed in his favour by a person who was not duly authorised by the Government." It is further stated that "the incompetency of the aforesaid appeal came to the knowledge of the petitioner after the passing of the judgment by the Honourable Supreme Court from the information made available by the reliable quarter." This explanation does not change the legal position that a new point cannot be raised in a review petition.

4. Mr. Muhammad Azam Khan then drew our attention to documents placed at pages 26. to 32 of the Paper Book which show that Justice (Rtd.) S. Usman Ali Shah and Justice (Rid) A. S. Salam were allowed to purchase a car each at depreciated price when they ceased to hold office as Wafaqi Mohtasib. These documents were not attached with the writ petition when it was filed in the High Court and were not filed in the appeal in this Court. They have been filed to show that such a practice exists in the Federal Government. It. is also a new point and cannot be considered. We may observe that the two instances relied upon by the petitioner can be considered by the High Court while deciding the writ petition on merits, if those documents are filed before it in accordance with law.

5. We would like. to state that the crucial point on which the appeal was accepted was that the car in dispute had already been, taken away from the present petitioner when interim relief was granted to the petitioner. Thus, there was no emergency within the meaning of Rule 34 of the Azad Jammu and Kashmir High Court Procedure Rules for relaxing the mandatory requirement of seven days' notice. In the review petition it has nowhere been stated that the car had not been taken away from the petitioner when the interim order was granted by the High Court. On the contrary in para. 5 of the review petition it has been stated by the petitioner that "the legal and de‑jure possession of the car was with the petition at the time of filing writ petition ". It clearly means that physical possession of the car was not with the petitioner. Thus, the basis on which the order of interim relief granted by the High Court is set aside remains unchallenged.

6. Before parting with the case it may be observed that in the judgment sought to be reviewed we have not given any finding, the merits of the writ petition pending in the High Court. We have mentioned the arguments of the learned Advocate‑General and have made some observations which are qualified by the word prima facie. Thus, there is no question that the learned judges in the High Court will be influenced by :u~ observations made by us. Finding no merit in this review, petition, we order its dismissal in limine. M.B.A./44/SC(AJ&K) Petition dismissed.